Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it. (b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ Acceptances. (c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no Lender shall be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, pay to the Administrative Agent on behalf of such Lenders an amount equal to the aggregate amount of the BA Acceptance Fees in respect of such Bankers’ Acceptances plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto. (d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting. (e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenders. (f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders. (g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof. (h) All Bankers’ Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). (i) To facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower. (j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that: (i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event; (ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or (iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances, (k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances. (l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance: (i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion; (ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent; (iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date; (iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders. (m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 2 contracts
Samples: Credit Agreement (CI Financial Corp.), Loan Agreement (CI Financial Corp.)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower Celestica or a Canadian Designated Subsidiary a Drawdown Notice, Notice or a Rollover Notice or a Conversion Notice requesting a drawdown of, a rollover of an Advance or a conversion Rollover or a Conversion into a Bankers’ AcceptancesAcceptance Advance, the Administrative Agent shall notify each of the applicable Lenders Canadian Lenders, prior to 11:00 11:30 a.m. (Toronto Toronto, Canada time) on the second first Banking Day prior to the date of such extension of credit Advance, of such request and of each applicable Canadian Lender’s Pro Rata Share Main Facility Rateable Portion of such extension Advance except that, if the Face Amount of credit. The a draft which would otherwise be accepted by a Canadian Lender would not be Cdn.$100,000, or an integral multiple thereof, such Face Amount shall be increased or reduced by the Administrative Agent shall also at such time notify in its sole and unfettered discretion to the Borrower nearest integral multiple of each applicable Lender’s Pro Rata Share of such extension of creditCdn.$100,000. Each applicable Canadian Lender shall, not later than 11:00 11:30 a.m. (Toronto Toronto, Canada time) on the date of each extension of credit Advance by way of Bankers’ AcceptanceAcceptance under the Facility (whether in respect of a Drawdown or pursuant to a Rollover or Conversion), accept drafts of the such Borrower who has delivered such Drawdown Notice, Rollover Notice or Conversion Notice which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Canadian Lender’s Pro Rata Share Main Facility Rateable Portion of the total extension of credit Advance being made available by way of Bankers’ Acceptances on such date. With respect to each Drawdown of or Rollover of or Conversion into Bankers’ Acceptances, as advised by the Administrative Agenteach Canadian Lender shall not be required to accept any draft which has a Face Amount which is not an integral multiple of Cdn.$100,000. Each applicable Subject to this Section and Section 2.3, each Canadian Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose its Main Facility Rateable Portion of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after . Concurrently with the acceptance of drafts of the such Borrower as aforesaid, each Canadian Lender shall make available to the Administrative Agent its Main Facility Rateable Portion of the Notional BA Proceeds with respect to the Bankers’ Acceptances accepted by itsuch Advance. The Administrative Agent shall, upon fulfilment by the such Borrower of the terms and conditions set forth out in Article 12Section 6.2 or Section 6.3, as applicable, make such Notional BA Proceeds available to the such Borrower on the date of such extension of credit Advance by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no Lender shall be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, pay to the Administrative Agent on behalf Account of such Lenders an amount equal to the aggregate amount of the BA Acceptance Fees in respect of such Bankers’ Acceptances plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenders.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 2 contracts
Samples: Revolving Term Credit Agreement (Celestica Inc), Revolving Term Credit Agreement (Celestica Inc)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lenders, prior to 11:00 10:00 a.m. (Toronto time) on the second Banking Business Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit.
(b) If, by 10:00 a.m. (Toronto time) on the first Business Day prior to the date of extension of credit, the Borrower has not advised the Agent in writing that it will be arranging its own sale of the Bankers’ Acceptances, each Lender shall purchase each Bankers’ Acceptance accepted by it (forthwith after the acceptance thereof) as herein provided. Each applicable If, by the aforesaid time, the Borrower does advise the Agent in writing that it will be arranging its own sale of the Bankers’ Acceptances, the Borrower shall, not later than 9:30 a.m. (Toronto time) on the date of the extension of credit, irrevocably notify the Agent of the name of the purchaser or purchasers of the Bankers’ Acceptances accepted by each Lender, the purchase price therefor and the denominations thereof and the Agent shall forthwith notify each Lender accordingly.
(c) Subject to Section 3.5, each Lender shall, not later than 11:00 10:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender Subject to the provisions hereof, the Agent shall purchase be responsible for making all necessary arrangements with each of the Lenders with respect to the stamping of Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Acceptances.
(d) Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and or all Bankers’ Acceptances accepted and purchased by it. With respect to Bankers’ Acceptances which are not purchased by the accepting Lenders, the accepting Lenders shall deliver the Bankers’ Acceptances accepted by them to the purchasers thereof against receipt of the purchase price therefor as advised by the Agent.
(be) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances. In the event that the Borrower fails to deliver a Conversion Notice or Rollover Notice and fails to make payment to the Agent in respect of the maturing Bankers’ Acceptances, the face amount of the maturing Bankers’ Acceptances shall be deemed to be converted to a Prime Rate Loan on the relevant maturity date pursuant to Section 6.5.
(cf) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Net Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Net Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant appropriate Designated Account. .
(g) In the case of a rollover of or conversion into Bankers’ Acceptances:
(i) if the Borrower has elected that the Lenders shall purchase the Bankers’ Acceptances accepted by them, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant appropriate Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.5 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto; or
(ii) if the Borrower has elected that the Lenders shall not purchase the Bankers’ Acceptances accepted by them, each Lender shall retain the purchase price paid for the Bankers’ Acceptances which it has accepted and it shall not be required to make any funds available to the Agent for deposit to the appropriate Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall pay to the Agent on behalf of the Lenders an amount equal to the aggregate amount of the acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.5 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate purchase price for such Bankers’ Acceptances.
(dh) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(ei) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d3.4(h). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(fj) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreementAgreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lendersrelevant Lender.
(gk) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(hl) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian CDS Clearing and Depository for Securities Limited Services Inc. pursuant to the Depository Bills and Notes Act (Canada).
(im) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreementAgreement, the Borrower irrevocably hereby authorizes each of the Lenders, and appoints each Lender from time to time of the Lenders as the Borrower’s attorney-in-fact of the Borrower , to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts or depository bills (as defined in the forms prescribed by such Lender Depository Bills and Notes Act (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”Canada). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (its behalf in handwritten form or by way of drawdown facsimile or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept mechanical signature or otherwise in accordance with the Drawdown, Rollover and Repayment applicable Drawdown Notice, delivered by the Borrower Conversion Notice or Rollover Notice and, once so completed, signed and advised by the Administrative Agent in connection with such issue, its share of the endorsed to accept them as Bankers’ Acceptances to be issued on under this Agreement and then if applicable, purchase, discount or negotiate such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this Agreement. Drafts or depository bills so completed, signed, endorsed and negotiated on behalf of the Borrower hereby agrees that it by a Lender shall make its own arrangements for bind the marketing Borrower as fully and sale effectively as if so performed by an authorized officer of the Borrower. Each draft of a Bankers’ Acceptances to be issued hereunder Acceptance and that no each depository xxxx completed, signed or endorsed by a Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that mature on the availability last day of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 2 contracts
Samples: Credit Agreement (Fortis Inc.), Credit Agreement (Fortis Inc.)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders relevant Lenders, prior to 11:00 a.m. 1:00 p.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit credit, of such request and of each applicable relevant Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the applicable Borrower of each applicable relevant Lender’s Pro Rata Share of such extension of credit. Each applicable Subject to Section 3.5, each relevant Lender shall, not later than 11:00 a.m. 1:00 p.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the applicable Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Each Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable relevant Lender shall, forthwith after the acceptance of drafts of the applicable Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the applicable Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the such Borrower on the date of such extension of credit by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each relevant Lender shall retain the proceeds of the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the applicable Borrower as aforesaid, the such Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the relevant Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.6 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the applicable Borrower, be executed in advance by or on behalf of the such Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more officers of the such Borrower who are properly so designated and authorized by the such Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the such Borrower to the relevant Lenders shall be valid and shall bind the such Borrower and may be dealt with by the relevant Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The applicable Borrower shall notify the Lenders as to those officers of such Borrower whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Each Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the such Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower Borrowers which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian CDS Clearing and Depository for Securities Limited Services Inc. (or other recognized clearing house) pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the each Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as such Borrower’s attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred applicable Drawdown Notice, Rollover Notice or Conversion Notice and, once so completed, signed and endorsed to accept them as a “BA Equivalent Note”). Each Bankers’ Acceptance Acceptances under this agreement and then if applicable, purchase, discount or negotiate such Bankers’ Acceptances in accordance with the provisions of this agreement. BA Equivalent Note executed Drafts so completed, signed, endorsed and delivered by a Lender negotiated on behalf of the applicable Borrower by such Lender shall bind such Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower fully and effectively as if it had been executed and delivered so performed by a duly an authorized officer of such Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Lender shall mature on the Borrowerlast day of the term thereof.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the applicable Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;; or
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
, (iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the applicable Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the applicable Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the such Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice given by such Borrower with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Funding of Bankers’ Acceptances. (ai) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders relevant Lenders, prior to 11:00 a.m. 5:00 p.m. (Toronto time) on the second Banking Business Day prior to the date of such extension of credit of such request and of each applicable relevant Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Subject to the provisions of this Agreement, each relevant Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable relevant Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable relevant Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable relevant Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(bii) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a relevant Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such relevant Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.
(ciii) In the case of a drawdown by way of Bankers’ Acceptance, each applicable relevant Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, shall make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting transfer to the relevant Designated Accountcredit of the account designated by the Borrower. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit transfer to the relevant Designated Accountcredit of the Borrower’s designated account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf for the account of such the relevant Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 2.4(c) plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(div) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more officers officer of the Borrower who are is properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the relevant Lenders shall be valid and shall bind the Borrower and may be dealt with by the relevant Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(ev) The Borrower shall notify the relevant Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d2.4(b)(iv). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the relevant Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(fvi) The Borrower hereby indemnifies and agrees to hold harmless the Lenders each relevant Lender against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreementAgreement, except to the extent determined by a court of competent jurisdiction to be due to the breach by such Lender of any Financing Agreement or gross negligence or wilful misconduct of the Lenderssuch Lender.
(gvii) Each of the relevant Lenders agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower Bankers’ Acceptances which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(hviii) All Bankers’ Acceptances shall to be accepted by a particular relevant Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(iix) To facilitate the issuance of Bankers’ Acceptances requested by the The Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse shall promptly execute and deliver on behalf to each relevant Lender a power of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower attorney in favour of such Lender (if in such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided ’s standard form for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Loan Agreement (Andersons, Inc.)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such Lenders an amount equal to the aggregate amount of the BA Acceptance Fees in respect of such Bankers’ Acceptances plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenders.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-in- fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-non interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances' Acceptances under a particular Credit Facility, the Administrative Agent shall notify each of the applicable Lenders which has made an Individual Commitment under such Credit Facility prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s 's Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower Borrowers of each applicable Lender’s 's Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ ' Acceptance, accept drafts of the applicable Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s 's Pro Rata Share of the total extension of credit being made available by way of Bankers’ ' Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ ' Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ ' Acceptances accepted and purchased by it.
(b) The Borrower Borrowers shall provide for payment to the accepting Lenders of the face amount of each Bankers’ ' Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower Borrowers hereby waives waive presentment for payment of Bankers’ ' Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ ' Acceptance which might exist by reason of such Bankers’ ' Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ ' Acceptances.
(c) In the case of a drawdown by way of Bankers’ ' Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the applicable Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ ' Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower Borrowers of the terms and conditions set forth in Article 12, make such BA Proceeds available to the applicable Borrower on the date of such extension of credit by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ ' Acceptances, no each Lender shall retain the Bankers' Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the applicable Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, Borrowers shall pay to the Administrative Agent on behalf of such Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ ' Acceptances calculated in accordance with Section 7.5 plus the amount by which the aggregate face amount of such Bankers’ ' Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ ' Acceptance may, at the option of the a particular Borrower, be executed in advance by or on behalf of the such Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more two officers of the such Borrower who are properly so designated and authorized by the such Borrower from time to time. Any Bankers’ ' Acceptance so executed and delivered by the such Borrower to the Lenders shall be valid and shall bind the such Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ ' Acceptance had been signed in the executing officers’ ' own handwriting.
(e) The Each Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ ' Acceptances in the manner provided in Section 3.4(d). ) Bankers’ ' Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the such Borrower shall otherwise notify the Lenders.
(f) The Borrower Borrowers hereby indemnifies indemnify and agrees agree to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the applicable Borrower on a Bankers’ Banker's Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower Borrowers which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ ' Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ ' Acceptances requested by the Borrower pursuant to this agreement, the each Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as such Borrower's attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or bxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ ' Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of negotiate such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ ' Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdownprovisions of this agreement. BA Drafts so completed, Rollover signed, endorsed and Repayment Noticenegotiated on behalf of a Borrower by such Lender shall bind such Borrower as fully and effectively as if so performed by an authorized officer of such Borrower. Each draft of a Bankers' Acceptance completed, delivered signed or endorsed by a Lender shall mature on the Borrower and advised by the Administrative Agent in connection with such issue, its share last day of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lendersterm thereof.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (Vitran Corp Inc)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and 286042.00038/115243826.6 agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the 286042.00038/115243826.6 same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as its attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept negotiate such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this agreement. BA Drafts so completed, signed, endorsed and negotiated on behalf of the Borrower hereby agrees that it by such Lender shall make its own arrangements for bind the marketing Borrower as fully and sale effectively as if so performed by an authorized officer of the Borrower. Each draft of a Bankers’ Acceptances to be issued hereunder and that no Acceptance completed, signed or endorsed by a Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that mature on the availability last day of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (New Gold Inc. /FI)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as its attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept negotiate such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this agreement. BA Drafts so completed, signed, endorsed and negotiated on behalf of the Borrower hereby agrees that it by such Lender shall make its own arrangements for bind the marketing Borrower as fully and sale effectively as if so performed by an authorized officer of the Borrower. Each draft of a Bankers’ Acceptances to be issued hereunder and that no Acceptance completed, signed or endorsed by a Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that mature on the availability last day of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (New Gold Inc. /FI)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time to time as the Borrower’s attorney-in-fact of the Borrower , to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept negotiate such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this agreement. BA Drafts so completed, signed, endorsed and negotiated on behalf of the Borrower hereby agrees that it by such Lender shall make its own arrangements for bind the marketing Borrower as fully and sale effectively as if so performed by an authorized officer of the Borrower. Each draft of a Bankers’ Acceptances to be issued hereunder and that no Acceptance completed, signed or endorsed by a Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that mature on the availability last day of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (Yamana Gold Inc)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no Lender shall be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, pay to the Administrative Agent on behalf of such Lenders an amount equal to the aggregate amount of the BA Acceptance Fees in respect of such Bankers’ Acceptances plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenders.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Loan Agreement (New Gold Inc. /FI)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (New Gold Inc. /FI)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the a Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ ' Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s 's Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the relevant Borrower of each applicable Lender’s 's Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ ' Acceptance, accept drafts of the relevant Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s 's Pro Rata Share of the total extension of credit being made available by way of Bankers’ ' Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ ' Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ ' Acceptances accepted and purchased by it.
(b) The relevant Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ ' Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The relevant Borrower hereby waives presentment for payment of Bankers’ ' Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ ' Acceptance which might exist by reason of such Bankers’ ' Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ ' Acceptances.
(c) In the case of a drawdown by way of Bankers’ ' Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the relevant Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ ' Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the relevant Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the relevant Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ ' Acceptances, no each Lender shall retain the Bankers' Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the relevant Borrower as aforesaid, the relevant Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ ' Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ ' Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ ' Acceptance may, at the option of the relevant Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)relevant Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the relevant Borrower who are properly so designated and authorized by the relevant Borrower from time to time. Any Bankers’ ' Acceptance so executed and delivered by the relevant Borrower to the Lenders shall be valid and shall bind the relevant Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ ' Acceptance had been signed in the executing officers’ ' own handwriting.
(e) The Each relevant Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ ' Acceptances in the manner provided in Section 3.4(d). Bankers’ ' Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Each Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the such Borrower on a Bankers’ Banker's Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower Borrowers which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ ' Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ ' Acceptances requested by the Borrower pursuant to this agreement, the each Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as such Borrower's attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ ' Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of negotiate such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ ' Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdownprovisions of this agreement. BA Drafts so completed, Rollover signed, endorsed and Repayment Noticenegotiated on behalf of such Borrower by such Lender shall bind such Borrower as fully and effectively as if so performed by an authorized officer of such Borrower. Each draft of a Bankers' Acceptance completed, delivered signed or endorsed by a Lender shall mature on the Borrower and advised by the Administrative Agent in connection with such issue, its share last day of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lendersterm thereof.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Loan Agreement (4352351 Canada Inc.)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the a Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the relevant Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the relevant Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The relevant Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The relevant Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the relevant Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the relevant Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the relevant Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the relevant Borrower as aforesaid, the relevant Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the relevant Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)relevant Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the relevant Borrower who are properly so designated and authorized by the relevant Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the relevant Borrower to the Lenders shall be valid and shall bind the relevant Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Each relevant Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner maimer provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Each Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the such Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower which Borrowers winch are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the each Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as such Borrower’s attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept negotiate such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this agreement. BA Drafts so completed, signed, endorsed and negotiated on behalf of such Borrower by such Lender shall bind such Borrower as fully and effectively as if so performed by an authorized officer of such Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Lender shall mature on the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale last day of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 1 contract
Samples: Loan Agreement (Lundin Mining CORP)
Funding of Bankers’ Acceptances. (ai) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders relevant Lenders, prior to 11:00 a.m. 5:00 p.m. (Toronto time) on the second Banking Business Day prior to the date of such extension of credit of such request and of each applicable relevant Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Subject to the provisions of this Agreement, each relevant Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable relevant Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable relevant Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable relevant Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(bii) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders Xxxxxxx and any defence to payment of amounts due to a relevant Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such relevant Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.
(ciii) In the case of a drawdown by way of Bankers’ Acceptance, each applicable relevant Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, shall make such BA Proceeds available to the Borrower on the date of such extension of credit by crediting transfer to the relevant Designated Accountcredit of the account designated by the Borrower. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit transfer to the relevant Designated Accountcredit of the Borrower’s designated account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf for the account of such the relevant Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 2.4(c) plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(div) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more officers officer of the Borrower who are is properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the relevant Lenders shall be valid and shall bind the Borrower and may be dealt with by the relevant Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(ev) The Borrower shall notify the relevant Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d2.4(b)(iv). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the relevant Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(fvi) The Borrower hereby indemnifies and agrees to hold harmless the Lenders each relevant Lender against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreementAgreement, except to the extent determined by a court of competent jurisdiction to be due to the breach by such Lender of any Financing Agreement or gross negligence or wilful misconduct of the Lenderssuch Lender.
(gvii) Each of the relevant Lenders agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower Bankers’ Acceptances which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(hviii) All Bankers’ Acceptances shall to be accepted by a particular relevant Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(iix) To facilitate the issuance of Bankers’ Acceptances requested by the The Borrower pursuant to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse shall promptly execute and deliver on behalf to each relevant Lender a power of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower attorney in favour of such Lender (if in such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided Xxxxxx’s standard form for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Loan Agreement (Andersons, Inc.)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the a Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the such Borrower of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the such Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower Borrowers shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower Borrowers hereby waives waive presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the a Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the a Borrower of the terms and conditions set forth in Article 12, make such BA Proceeds available to the such Borrower on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the such Borrower as aforesaid, the such Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.7 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the a Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)such Borrower, by mechanically reproduced or facsimile signatures of any one or more two officers of the such Borrower who are properly so designated and authorized by the such Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the a Borrower to the Lenders shall be valid and shall bind the such Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Each Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Each Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the a Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower Borrowers which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreement, the each Borrower irrevocably hereby authorizes each Lender, and appoints each Lender from time as its attorney, to time as the attorney-in-fact of the Borrower to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars or depository bills (each such executed draft that has not yet been accepted by a Lender or xxxx being herein referred to as a “BA Draft”) on its behalf in handwritten form or non-interest-bearing promissory notes of by facsimile or mechanical signature or otherwise in accordance with the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any applicable Drawdown Notice, Rollover Notice or Conversion Notice with respect and, once so completed, signed and endorsed to any proposed issue of accept them as Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Noticeunder this agreement and then if applicable, Rollover Notice purchase, discount or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept negotiate such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this agreement. BA Drafts so completed, signed, endorsed and negotiated on behalf of a Borrower by such Lender shall bind such Borrower as fully and effectively as if so performed by an authorized officer of such Borrower. Each draft of a Bankers’ Acceptance completed, signed or endorsed by a Lender shall mature on the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale last day of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (New Gold Inc. /FI)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ AcceptancesAcceptances under a particular Credit Facility, the Administrative Agent shall notify each of the applicable Lenders which has made an Individual Commitment under such Credit Facility prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower Borrowers of each applicable Lender’s Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the applicable Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ Acceptances accepted and purchased by it.
(b) The Borrower Borrowers shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower Borrowers hereby waives waive presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders any days of grace for the payment at maturity of Bankers’ Acceptances.
(c) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the applicable Borrower as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower Borrowers of the terms and conditions set forth in Article 12, make such BA Proceeds available to the applicable Borrower on the date of such extension of credit by crediting the relevant Designated Account. In the case of a rollover of or conversion into Bankers’ Acceptances, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant Designated Account; however, forthwith after the acceptance of drafts of the applicable Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, Borrowers shall pay to the Administrative Agent on behalf of such Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.05 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ Acceptance may, at the option of the a particular Borrower, be executed in advance by or on behalf of the such Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more two officers of the such Borrower who are properly so designated and authorized by the such Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the such Borrower to the Lenders shall be valid and shall bind the such Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(e) The Each Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d3.04(d). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the such Borrower shall otherwise notify the Lenders.
(f) The Borrower Borrowers hereby indemnifies indemnify and agrees agree to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the applicable Borrower on a Bankers’ Banker’s Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills of the Borrower Borrowers which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ Acceptances shall be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant The Borrowers may, at their option, execute and deliver to this agreement, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact a power of the Borrower to execute, endorse and deliver on behalf of the Borrower drafts in the forms prescribed by such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower attorney in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue form of Bankers’ AcceptancesSchedule F hereto.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (Vitran Corp Inc)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ ' Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lender, prior to 11:00 a.m. (Toronto time) on the second Banking Day prior to the date of such extension of credit of such request and of each applicable Lender’s 's Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower Kinross Canada of each applicable Lender’s 's Pro Rata Share of such extension of credit. Each applicable Lender shall, not later than 11:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ ' Acceptance, accept drafts of the Borrower Kinross Canada which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s 's Pro Rata Share of the total extension of credit being made available by way of Bankers’ ' Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender shall purchase the Bankers’ ' Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and all Bankers’ ' Acceptances accepted and purchased by it.
(b) The Borrower Kinross Canada shall provide for payment to the accepting Lenders of the face amount of each Bankers’ ' Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower Kinross Canada hereby waives presentment for payment of Bankers’ ' Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ ' Acceptance which might exist by reason of such Bankers’ ' Acceptance being held at maturity by the such Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ ' Acceptances.
(c) In the case of a drawdown by way of Bankers’ ' Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower Kinross Canada as aforesaid, make available to the Administrative Agent the BA Proceeds with respect to the Bankers’ ' Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower Kinross Canada of the terms and conditions set forth in Article 12, make such BA Proceeds available to the Borrower Kinross Canada on the date of such extension of credit by crediting the relevant applicable Designated Account. In the case of a rollover of or conversion into Bankers’ ' Acceptances, no each Lender shall retain the Bankers' Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant applicable Designated Account; however, forthwith after the acceptance of drafts of the Borrower Kinross Canada as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, Kinross Canada shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ ' Acceptances calculated in accordance with Section 7.05 plus the amount by which the aggregate face amount of such Bankers’ ' Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto.
(d) Any Bankers’ ' Acceptance may, at the option of the BorrowerKinross Canada, be executed in advance by or on behalf of the Borrower (as otherwise provided herein)Kinross Canada, by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower Kinross Canada who are properly so designated and authorized by the Borrower Kinross Canada from time to time. Any Bankers’ ' Acceptance so executed and delivered by the Borrower Kinross Canada to the Lenders shall be valid and shall bind the Borrower Kinross Canada and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ ' Acceptance had been signed in the executing officers’ ' own handwriting.
(e) The Borrower Kinross Canada shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ ' Acceptances in the manner provided in Section 3.4(d3.04(d). Bankers’ ' Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(f) The Borrower Kinross Canada hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower Kinross Canada on a Bankers’ Banker's Acceptance prepared, executed, issued and accepted pursuant to this agreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lenders.
(g) Each of the Lenders Lender agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower Kinross Canada which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(h) All Bankers’ ' Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada).
(i) To facilitate At the issuance request of Bankers’ Acceptances requested by the Borrower pursuant to this agreementa particular Lender, the Borrower irrevocably appoints each Lender from time to time as the attorney-in-fact of the Borrower to execute, endorse Kinross Canada shall promptly execute and deliver on behalf of the Borrower drafts in the forms prescribed by to such Lender (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes power of the Borrower attorney in favour of such Canadian Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue form of Bankers’ AcceptancesSchedule M hereto.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (by way of drawdown or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept in accordance with the Drawdown, Rollover and Repayment Notice, delivered by the Borrower and advised by the Administrative Agent in connection with such issue, its share of the Bankers’ Acceptances to be issued on such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l), the Borrower hereby agrees that it shall make its own arrangements for the marketing and sale of the Bankers’ Acceptances to be issued hereunder and that no Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that the availability of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (Kinam Gold Inc)
Funding of Bankers’ Acceptances. (a) If the Administrative Agent receives from the Borrower a Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptances, the Administrative Agent shall notify each of the applicable Lenders Lenders, prior to 11:00 10:00 a.m. (Toronto time) on the second Banking Business Day prior to the date of such extension of credit of such request and of each applicable Lender’s Pro Rata Share of such extension of credit. The Administrative Agent shall also at such time notify the Borrower of each applicable Lender’s Pro Rata Share of such extension of credit.
(b) If, by 10:00 a.m. (Toronto time) on the first Business Day prior to the date of extension of credit, the Borrower has not advised the Agent in writing that it will be arranging its own sale of the Bankers’ Acceptances, each Lender shall purchase each Bankers’ Acceptance accepted by it (forthwith after the acceptance thereof) as herein provided. Each applicable If, by the aforesaid time, the Borrower does advise the Agent in writing that it will be arranging its own sale of the Bankers’ Acceptances, the Borrower shall, not later than 9:30 a.m. (Toronto time) on the date of the extension of credit, irrevocably notify the Agent of the name of the purchaser or purchasers of the Bankers’ Acceptances accepted by each Lender, the purchase price therefor and the denominations thereof and the Agent shall forthwith notify each Lender accordingly.
(c) Subject to Section 3.5, each Lender shall, not later than 11:00 10:00 a.m. (Toronto time) on the date of each extension of credit by way of Bankers’ Acceptance, accept drafts of the Borrower which are presented to it for acceptance and which have an aggregate face amount equal to such applicable Lender’s Pro Rata Share of the total extension of credit being made available by way of Bankers’ Acceptances on such date, as advised by the Administrative Agent. Each applicable Lender Subject to the provisions hereof, the Agent shall purchase be responsible for making all necessary arrangements with each of the Lenders with respect to the stamping of Bankers’ Acceptances which it has accepted for a purchase price equal to the BA Discounted Proceeds therefor. Acceptances.
(d) Each applicable Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any and or all Bankers’ Acceptances accepted and purchased by it. With respect to Bankers’ Acceptances which are not purchased by the accepting Lenders, the accepting Lenders shall deliver the Bankers’ Acceptances accepted by them to the purchasers thereof against receipt of the purchase price therefor as advised by the Agent.
(be) The Borrower shall provide for payment to the accepting Lenders of the face amount of each Bankers’ Acceptance at its maturity, either by payment of such amount or through an extension of credit hereunder or through a combination of both. The Borrower hereby waives presentment for payment of Bankers’ Acceptances by the Lenders and any defence to payment of amounts due to a Lender in respect of a Bankers’ Acceptance which might exist by reason of such Bankers’ Acceptance being held at maturity by the Lender which accepted it and agrees not to claim from such Lenders Lender any days of grace for the payment at maturity of Bankers’ Acceptances. In the event that the Borrower fails to deliver a Conversion Notice or Rollover Notice and fails to make payment to the Agent in respect of the maturing Bankers’ Acceptances, the face amount of the maturing Bankers’ Acceptances shall be deemed to be converted to a Prime Rate Loan on the relevant maturity date pursuant to Section 6.5.
(cf) In the case of a drawdown by way of Bankers’ Acceptance, each applicable Lender shall, forthwith after the acceptance of drafts of the Borrower as aforesaid, make available to the Administrative Agent the BA Net Proceeds with respect to the Bankers’ Acceptances accepted by it. The Administrative Agent shall, upon fulfilment by the Borrower of the terms and conditions set forth in Article 12, make such BA Net Proceeds available to the Borrower on the date of such extension of credit by crediting the relevant appropriate Designated Account. .
(g) In the case of a rollover of or conversion into Bankers’ Acceptances:
(i) if the Borrower has elected that the Lenders shall purchase the Bankers’ Acceptances accepted by them, no each Lender shall retain the Bankers’ Acceptance accepted by it and shall not be required to make any funds available to the Administrative Agent for deposit to the relevant appropriate Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall, upon acceptance of the Borrower’s BA Drafts pursuant to Section 5.2 or 5.3, as applicable, shall pay to the Administrative Agent on behalf of such the Lenders an amount equal to the aggregate amount of the BA Acceptance Fees acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.5 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate BA Discounted Proceeds with respect thereto; or
(ii) if the Borrower has elected that the Lenders shall not purchase the Bankers’ Acceptances accepted by them, each Lender shall retain the purchase price paid for the Bankers’ Acceptances which it has accepted and it shall not be required to make any funds available to the Agent for deposit to the appropriate Designated Account; however, forthwith after the acceptance of drafts of the Borrower as aforesaid, the Borrower shall pay to the Agent on behalf of the Lenders an amount equal to the aggregate amount of the acceptance fees in respect of such Bankers’ Acceptances calculated in accordance with Section 7.5 plus the amount by which the aggregate face amount of such Bankers’ Acceptances exceeds the aggregate purchase price for such Bankers’ Acceptances.
(dh) Any Bankers’ Acceptance may, at the option of the Borrower, be executed in advance by or on behalf of the Borrower (as otherwise provided herein), by mechanically reproduced or facsimile signatures of any one or more two officers of the Borrower who are properly so designated and authorized by the Borrower from time to time. Any Bankers’ Acceptance so executed and delivered by the Borrower to the Lenders shall be valid and shall bind the Borrower and may be dealt with by the Lenders to all intents and purposes as if the Bankers’ Acceptance had been signed in the executing officers’ own handwriting.
(ei) The Borrower shall notify the Lenders as to those officers whose signatures may be reproduced and used to execute Bankers’ Acceptances in the manner provided in Section 3.4(d3.4(h). Bankers’ Acceptances with the mechanically reproduced or facsimile signatures of designated officers may be used by the Lenders and shall continue to be valid, notwithstanding the death, termination of employment or termination of authorization of either or both of such officers or any other circumstance until such time as the Borrower shall otherwise notify the Lenderscircumstance.
(fj) The Borrower hereby indemnifies and agrees to hold harmless the Lenders against and from all losses, damages, expenses and other liabilities caused by or attributable to the use of the mechanically reproduced or facsimile signature instead of the original signature of an authorized officer of the Borrower on a Bankers’ Acceptance prepared, executed, issued and accepted pursuant to this agreementAgreement, except to the extent determined by a court of competent jurisdiction to be due to the gross negligence or wilful misconduct of the Lendersrelevant Lender.
(gk) Each of the Lenders agrees that, in respect of the safekeeping of executed depository bills drafts of the Borrower which are delivered to it for acceptance hereunder, it shall exercise the same degree of care which it gives to its own property, provided that it shall not be deemed to be an insurer thereof.
(hl) All Bankers’ Acceptances shall to be accepted by a particular Lender shall, at the option of such Lender, be issued in the form of depository bills made payable originally to and deposited with The Canadian CDS Clearing and Depository for Securities Limited Services Inc. pursuant to the Depository Bills and Notes Act (Canada).
(im) To In order to facilitate the issuance of Bankers’ Acceptances requested by the Borrower pursuant to this agreementAgreement, the Borrower irrevocably hereby authorizes each of the Lenders, and appoints each Lender from time to time of the Lenders as the Borrower’s attorney-in-fact of the Borrower , to executecomplete, sign and endorse and deliver on behalf of the Borrower drafts or depository bills (as defined in the forms prescribed by such Lender Depository Bills and Notes Act (if such Lender is not a Non-BA Lender) for bankers’ acceptances denominated in Canadian Dollars (each such executed draft that has not yet been accepted by a Lender being referred to as a “BA Draft”) or non-interest-bearing promissory notes of the Borrower in favour of such Lender (if such Lender is a Non-BA Lender) (each such promissory note being referred to as a “BA Equivalent Note”Canada). Each Bankers’ Acceptance and BA Equivalent Note executed and delivered by a Lender on behalf of the Borrower as provided for in this Section 3.4(i) shall be as binding on the Borrower as if it had been executed and delivered by a duly authorized officer of the Borrower.
(j) If at any time on or prior to the proposed first day of the term of a proposed issue of Bankers’ Acceptances the Administrative Agent determines (which determination shall be made acting reasonably and in good faith, but shall be conclusive and bind the Borrower) after reasonable efforts that:
(i) the issuance or discount of any Bankers’ Acceptances for the proposed term thereof has been made impossible or impracticable by reason of the occurrence of any event affecting the Canadian money markets or any national or international financial, political, terrorist or economic event;
(ii) there does not exist a normal money market in Canada for the purchase and sale of bankers’ acceptances or such money market has been disrupted by the occurrence of an extraordinary event or an act of terrorism; or
(iii) the Administrative Agent is unable to determine CDOR for the proposed term of the proposed issue of Bankers’ Acceptances,
(k) (in this clause (j), a “BA Disruption Event”) then the Administrative Agent will promptly notify the Borrower and each Lender of such determination. Thereafter, and until the Administrative Agent notifies the Borrower and the Lenders that the BA Disruption Event no longer exists or applies, the right of the Borrower to request an extension of credit by way of Bankers’ Acceptances shall be suspended and any Drawdown Notice, Rollover Notice or Conversion Notice with respect to any proposed issue of Bankers’ Acceptances that has not yet been made shall be deemed to be replaced by a Drawdown Notice, Rollover Notice or Conversion Notice for a Prime Rate Loan in the same amount as the requested issue of Bankers’ Acceptances.
(l) Notwithstanding anything in this Section 3.4 to the contrary, if the Borrower has not presented drafts to the Lenders in accordance with Section 3.4(a), on each date of any Drawdown Notice, Rollover Notice or Conversion Notice requesting a drawdown of, a rollover of or a conversion into Bankers’ Acceptance:
(i) the Borrower shall obtain quotations from prospective purchasers regarding the sale of the Bankers’ Acceptances and shall accept such offers in its sole discretion;
(ii) by no later than 10:00 a.m. (Toronto time) on the date of issuance of a Bankers’ Acceptance (its behalf in handwritten form or by way of drawdown facsimile or rollover), the Borrower shall provide the Administrative Agent with details regarding the sale of the Bankers’ Acceptances described in 3.4(a) above whereupon the Administrative Agent shall promptly notify the Lenders of the identity of the purchasers of such Bankers’ Acceptances, the amounts being purchased by such purchasers, the BA Discounted Proceeds applicable to such issue of Bankers’ Acceptances (including each Lender’s share thereof) and such other information as reasonably requested by the Administrative Agent;
(iii) each Lender shall complete and accept mechanical signature or otherwise in accordance with the Drawdown, Rollover and Repayment applicable Drawdown Notice, delivered by the Borrower Conversion Notice or Rollover Notice and, once so completed, signed and advised by the Administrative Agent in connection with such issue, its share of the endorsed to accept them as Bankers’ Acceptances to be issued on under this Agreement and then if applicable, purchase, discount or negotiate such date;
(iv) in the case of a drawdown, each Lender shall, on receipt of the BA Discounted Proceeds, remit such net BA Discounted Proceeds to the Administrative Agent for the account of the Borrower. The Administrative Agent shall make such funds available to the Borrower promptly following receipt of such funds from the Lenders.
(m) In the event that the Borrower is marketing its own Bankers’ Acceptances in accordance with Section 3.4(l)the provisions of this Agreement. Drafts or depository bills so completed, signed, endorsed and negotiated on behalf of the Borrower hereby agrees that it by a Lender shall make its own arrangements for bind the marketing Borrower as fully and sale effectively as if so performed by an authorized officer of the Borrower. Each draft of a Bankers’ Acceptances to be issued hereunder Acceptance and that no each depository bxxx completed, signed or endorsed by a Lender shall have any obligation nor be responsible in that regard. The Borrower further acknowledges and agrees that mature on the availability last day of purchasers for Bankers’ Acceptances requested to be issued hereunder, as well as all risks relating to the purchasers term thereof, are its own risk.
Appears in 1 contract
Samples: Credit Agreement (Fortis Inc.)
