Redistribution of payments. 13.22.1 If any Lender shall exercise any right of counter-claim, set-off or bankers' lien or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately between: 13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and 13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment. 13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims. 13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Redistribution of payments. 13.22.1 If (a) If, at any Lender shall exercise time, the proportion which any right Senior Finance Party (a "Recovering Senior Finance Party") has received or recovered (whether voluntary, involuntary, by application of counter-claim, set-set off or bankers' lien otherwise) in respect of its portion of any payment (a "relevant payment") to be made under this Agreement or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency other Finance Document (other than any Risk Management Agreement to which it is party) by any Obligor for the account of such Recovering Senior Finance Party and one or more other similar law it receives a secured claim the security for which Senior Finance Parties is a debt owed by it to such Obligor, it shall apportion greater (the amount of such excess being herein called an "excess amount") than the proportion thereof proportionately between:
13.22.1.1 amounts comprised received or recovered by the Senior Finance Party or Senior Finance Parties entitled to participate in the Loan Obligations owing payment Obligation to which such Lenderpayment relates and which are receiving or recovering the smallest proportion thereof (which, which amounts for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be applied distributed among the Senior Lenders in accordance with this Agreementtheir respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Party shall pay to the Principal Facilities Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Senior Finance Party an amount equal to the amount paid out by such Recovering Senior Finance Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Senior Finance Party's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed (iii) the Principal Facilities Agent shall treat the amount received by it from such Recovering Senior Finance Party pursuant to clause (a)(i) as if such amount had been received by it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf the Borrower in respect of such Obligor may be applied relevant payment and shall pay the same to the other Senior Finance Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Senior Finance Party receives or recovers any relevant payment otherwise than by such Lender to such amounts owed payment through the Principal Facilities Agent, that Senior Finance Party shall notify the Principal Facilities Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(b) If any sum (a "relevant sum") received or recovered by such Obligor to such Lender a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such documentary or standby credit or letter Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of clause (a) shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due Principal Facilities Agent, pay to it which is greater than the proportion received by any other Lender in respect Principal Facilities Agent for the account of the aggregate Recovering Senior Finance Party an amount equal to its share of the Loan Obligations relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such other Lender (having regard Senior Finance Party an amount equal to the respective Rateable Shares of the Lendersamount paid out by it pursuant to clause (b)(i), the Lender receiving amount so due being treated, for the purposes hereof, as if it were the sum payable to such proportionately greater payment shall purchase a participation (Senior Finance Party against which shall be done simultaneously with receipt such Senior Finance Party's share of such paymentrelevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in that any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Senior Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Senior Lender shall not be required to share any portion of such excess amount with any Senior Lender which has the Loan Obligations due legal right to, but does not, join in such action or proceeding (having had notice of such action or proceeding) or commence and diligently prosecute a separate action or proceeding to enforce its rights.
(d) Notwithstanding anything to the contrary contained in this Agreement or any other Finance Document, no Covered Senior Lender shall have any obligation to share any payment made to it by any provider of Political Risk Insurance with any Uncovered Lender.
(e) Notwithstanding anything to the contrary contained in this Agreement or Lenders any other Finance Document, neither IFC nor Export Development Canada (the "Selling Lender or Lenders"in their capacities as a Tranche A Senior Lender) so that the respective receipts shall be pro rata according have any obligation to their Rateable Shares; provided, however, that if all or part of such proportionately greater share any payment received by such purchasing Lender shall be recovered from or for the account of IFC or Export Development Canada in freely convertible and transferable currencies ("Convertible Currencies") under circumstances where
(i) there is an Obligor by unavailability or shortage of foreign exchange in Russia;
(ii) there has occurred a moratorium or general debt rescheduling with respect to indebtedness of entities in Russia; or
(iii) the Selling Lender Central Bank of Russia or Lenders, such purchase shall be rescinded and any other authority having the purchase price paid for such participation shall be returned by such Selling Lender or Lenders power to regulate foreign exchange is not generally permitting the extent conversion of such recoverythe Rouble into Convertible Currencies, but without interest. Such Lender shall exercise its rights where IFC or Export Development Canada is either being exempted from such foreign exchange restrictions or is otherwise afforded preferential treatment by foreign currency being made available for obligations owed to it in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsConvertible Currencies.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Redistribution of payments. 13.22.1 If Except for payments to a Lender which were received by the Facility Agent for the account of such Lender in accordance with a Finance Document and subject to the terms of the Intercreditor and Subordination Agreement (if any), if, at any time, any Lender (a "Recovering Lender") shall receive or recover (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such paymentotherwise) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment any amount payable to a Lender (a "Relevant Payment'') under that Finance Document by an Obligor in a proportion which, in relation to any amounts received by one or more other Lenders, represents more than its proportional Participation in such purchasing amount payable (such excess being called in this Agreement an "Excess Amount"), then:
(a) such Recovering Lender shall be recovered pay to the Facility Agent an amount equal to the Excess Amount;
(b) there shall thereupon become due from such Obligor to the Recovering Lender an amount equal to the amount paid by the Recovering Lender pursuant to paragraph (a) of this Clause 23.1, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of the Recovering Lender's portion of the Relevant Payment; and
(c) the Facility Agent shall treat the amount received by it from the Recovering Lender pursuant to paragraph (a) of this Clause 23.1 above as if such amount had been received by the Facility Agent from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of Relevant Payment and shall distribute such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof amount to the Agent and the Agent shall promptly provide copies of such particulars persons entitled to the other LendersRelevant Payment (including the Recovering Lender) pro rata to their respective entitlements thereto.
Appears in 1 contract
Redistribution of payments. 13.22.1 If 25.1 If, at any Lender shall time, the proportion which any Bank (a "Recovering Bank") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "relevant payment") to be made under this Agreement by either of the Obligors for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "excess amount") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances thereupon fall due from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to Clause 23.3(i)(a) such portion of such excess amount as is so attributable shall not be required to be shared pursuant hereto.
25.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank in respect of any amount owing to it by either the Obligors becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
(i) each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 25.1 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and the Agent shall promptly provide copies for account of such particulars Recovering Bank an amount equal to its share of such relevant sum together with its share of such amount (if any) as is necessary to reimburse the Recovering Bank for any interest it shall have been obliged to pay to either of the Obligors in respect thereof when repaying such relevant sum to such Obligor; and
(ii) there shall thereupon fall due from such Obligor to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
25.3 A Bank shall not be obliged to share any amount pursuant to clause 25.1 if it has received or recovered such amount as a result of taking legal proceedings with any other Lenders.Bank which had an opportunity to participate in those legal proceedings but did not do so and did not separately take equivalent legal proceedings. FEES, COSTS AND EXPENSES
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Incentive Ab)
Redistribution of payments. 13.22.1 If Subject to Clause 19.3, if, at any Lender shall time, the proportion which any Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by the Borrower for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by such Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Facility Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through (iii) the exercise of a right, or Facility Agent shall treat the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion amount received by any other Lender in respect of the aggregate it from such Recovering Bank pursuant to paragraph (i) above as if such amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment had been received by such purchasing Lender shall be recovered it from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights Borrower in respect of such secured claim in a manner consistent with relevant payment and shall pay the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof same to the Agent and persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the Agent shall promptly provide copies extent that any excess amount is attributable to a payment to a Bank pursuant to Clause 17.3(i)(a) such portion of such particulars excess amount as is so attributable shall not be required to the other Lendersbe shared pursuant hereto.
Appears in 1 contract
Samples: Facility Agreement (Royal Ahold)
Redistribution of payments. 13.22.1 If 15.22.1 Disproportionate Receipts to be Shared. Except for any Lender shall exercise any right of counter-claimpayment that is required to be shared pursuant to Subsection 15.22.2, set-off or bankers' lien or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt any right of a secured claim described above set-off or otherwise (save for any payment made to it from the Agent in accordance with the provisions hereof) receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their respective Rateable Shares; provided, however, that that:
(a) if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in respect full; and
(b) if all or part of such secured claim proportionately greater payment received by such purchasing Lender is found to have been a transfer in fraud of creditors or a manner consistent with preferential payment under any applicable bankruptcy or insolvency legislation or is otherwise required to be returned by such purchasing Lender, such purchase shall be rescinded and the rights of the purchase price paid for such participation shall be returned by such Selling Lender or Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies extent of such particulars to amount returned, together with interest thereon at the other Lendersrelevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full.
Appears in 1 contract
Samples: Credit Agreement (MDC Partners Inc)
Redistribution of payments. 13.22.1 If 28.1 If, at any Lender shall time, the proportion which any Bank (a “Recovering Bank”) has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a “relevant payment”) to be made under this Agreement by any of the Obligors for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an “excess amount”) than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
28.1.1 such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
28.1.2 there shall apportion (within 3 business days after receipt of a notice from the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances Agent) fall due from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to sub-clause 28.1.1 above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank’s portion of such relevant payment; and
28.1.3 the Agent shall treat the amount received by it from such Recovering Bank pursuant to sub-clause 28.1.1 above as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to this Clause 28.1 such portion of such excess amount as is so attributable shall not be required to be shared pursuant hereto.
28.2 If any sum (a “relevant sum”) received or recovered by a Recovering Bank in respect of any amount owing to it by any of the Obligors becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
28.2.1 each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 28.1 of this Clause 28 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and the Agent shall promptly provide copies for account of such particulars Recovering Bank an amount equal to its share of such relevant sum; and
28.2.2 there shall thereupon fall due from such Obligor to each such Bank an amount equal to the other Lendersamount paid out by it pursuant to sub-clause 28.2.1 above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank’s share of such relevant sum was applied.
Appears in 1 contract
Redistribution of payments. 13.22.1 If 24.1 Subject to Clause 24.2, if, at any Lender shall time, the proportion which any Bank (a "Recovering Bank") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by either Borrower for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from the relevant Borrower to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through (iii) the exercise of a right, or Agent shall treat the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion amount received by any other Lender in respect of the aggregate it from such Recovering Bank pursuant to paragraph (i) above as if such amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment had been received by such purchasing Lender shall be recovered it from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights relevant Borrower in respect of such secured claim relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) PRO RATA to their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to enforce its rights hereunder and, as a manner consistent with the rights of the Lenders entitled under this Section 13.22 result thereof or in connection therewith, shall receive any excess amount (as defined in Clause 24.1), then such Bank shall not be required to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies portion of such particulars excess amount with any Bank which has the legal right to, but does not, join in such action or proceeding or commence and diligently prosecute a separate action or proceeding to the other Lendersenforce its rights in another court.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Redistribution of payments. 13.22.1 (a) If, at any time, the proportion which any Finance Party (a “Recovering Finance Party”) has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a “relevant payment”) to be made under this Agreement or under any other Finance Document (other than any Risk Management Agreement to which it is Party) by any Obligor for the account of such Recovering Finance Party and one or more other Finance Parties is greater (the amount of such excess being herein called an “excess amount”) than the proportion thereof received or recovered by the Finance Party or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be distributed among the Lenders in accordance with their respective Funding Percentages), then:
(i) such Recovering Finance Party shall pay to the Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Finance Party an amount equal to the amount paid out by such Recovering Finance Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Finance Party’s portion of such relevant payment; and
(iii) the Facility Agent shall treat the amount received by it from such Recovering Finance Party pursuant to clause (a)(i) as if such amount had been received by it from the Borrower in respect of such relevant payment and shall pay the same to the other Finance Parties in accordance with their respective Funding Percentages. Within two (2) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Facility Agent, that Finance Party shall notify the Facility Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(b) If any sum (a “relevant sum”) received or recovered by a Recovering Finance Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance Party, then:
(i) each Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Facility Agent, pay to the Facility Agent for the account of the Recovering Finance Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Finance Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if it were the sum payable to such Finance Party against which such Finance Party’s share of such relevant sum was applied.
(c) If any Lender shall exercise commence any right of counter-claim, set-off action or bankers' lien proceeding in any court to enforce its rights hereunder or similar right with respect to the property of an Obligor or if under any applicable bankruptcyother Finance Document after consultation with the other Lenders and, insolvency as a result thereof or other similar law it receives a secured claim the security for which is a debt owed by it in connection therewith, shall receive any excess amount (as referred to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by clause (a)) then such Lender on behalf shall not be required to share any portion of such Obligor may be applied by excess amount with any Lender which has the legal right to, but does not, join in such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary action or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender proceeding (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt had notice of such paymentaction or proceeding) in that portion of the Loan Obligations due or commence and diligently prosecute a separate action or proceeding to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise enforce its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsrights.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Samples: Loan Agreement (Yamana Gold Inc)
Redistribution of payments. 13.22.1 If 33.1 If, at any Lender shall time, the proportion which any Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by any of the Borrowers for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Facility Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from such Borrower to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed (iii) the Facility Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it by from such Obligor; provided Borrower in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the extent that any cash collateral account funded by way of advances from an Obligor as collateral for excess amount is attributable to a documentary or standby credit or letter of guarantee issued by payment to a Bank pursuant to Clause 31.3(i)(a) such Lender on behalf portion of such Obligor may excess amount as is so attributable shall not be applied required to be shared pursuant hereto.
33.2 Nothing in this Clause 33 shall confer on any Bank a security interest over any property of any Borrower and the obligations and liabilities of each Borrower arising under this Clause 33 shall have effect accordingly.
33.3 If any sum (a "RELEVANT SUM") received or recovered by such Lender to such amounts owed by such Obligor to such Lender a Recovering Bank in respect of any amount owing to it by any of the Borrowers becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
(i) each Bank which has received a share of guarantee without apportionmentsuch relevant sum by reason of the implementation of Clause 33.1 shall, upon request of the Facility Agent pay to the Facility Agent for account of such Recovering Bank an amount equal to its share of such relevant sum; and
(ii) there shall thereupon fall due from such Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
13.22.2 If a Lender shall33.4 Without prejudice to the preceding provisions of this Clause 33, through if the exercise Facility Agent shall receive from PLC or any other Borrower hereunder funds which are insufficient to satisfy in full the obligations of a right, or such person under the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations Finance Documents then due to it which is greater than be discharged, the proportion Facility Agent shall allocate the funds so received by any other Lender in respect of or towards discharging the aggregate amount of the Loan Obligations amounts then so due to from such other Lender (having regard person pro rata to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt amounts of such payment) in that portion of obligations and each party hereto irrevocably authorises and directs the Loan Obligations due Facility Agent so to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsact.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Samples: Multicurrency Multi Option Facility Agreement (Pearson Merger Co Inc)
Redistribution of payments. 13.22.1 If 29.1 If, at any Lender shall time, the proportion which a Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by any of the Borrowers for account of such Recovering Bank and the other Bank is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by the Bank so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from such Borrower to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed (iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it by from such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf Borrower in respect of such Obligor may be applied relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto.
29.2 If any sum (a "RELEVANT SUM") received or recovered by such Lender to such amounts owed by such Obligor to such Lender a Recovering Bank in respect of any amount owing to it by any of the Borrowers becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
(i) each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 29.1 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and for the Agent shall promptly provide copies account of such particulars Recovering Bank an amount equal to its share of such relevant sum; and
(ii) there shall thereupon fall due from such Borrower to each such Bank an amount equal to the other Lenders.amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied. FEES, COSTS AND EXPENSES
Appears in 1 contract
Redistribution of payments. 13.22.1 If 24.1 Subject to Clause 24.2, if, at any Lender shall time, the proportion which any Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender otherwise) in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a its portion of the Loan Obligations due any payment (a "RELEVANT PAYMENT") to it which be made under this Agreement by either Borrower for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by any other Lender in respect of the aggregate Bank or Banks so receiving or recovering the smallest proportion thereof, then: (i) such Recovering Bank shall pay to the Agent an amount of the Loan Obligations due equal to such other Lender excess amount; (having regard ii) there shall thereupon fall due from the relevant Borrower to such Recovering Bank an amount equal to the respective Rateable Shares of the Lenders)amount paid out by such Recovering Bank pursuant to paragraph (i) above, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of amount so due being, for the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; providedpurposes hereof, however, that treated as if all or it were an unpaid part of such proportionately greater payment Recovering Bank's portion of such relevant payment; and (iii) the Agent shall treat the amount received by it from such purchasing Lender shall be recovered Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights relevant Borrower in respect of such secured claim relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) PRO RATA to their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to enforce its rights hereunder and, as a manner consistent with the rights of the Lenders entitled under this Section 13.22 result thereof or in connection therewith, shall receive any excess amount (as defined in Clause 24.1), then such Bank shall not be required to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies portion of such particulars excess amount with any Bank which has the legal right to, but does not, join in such action or proceeding or commence and diligently prosecute a separate action or proceeding to the other Lendersenforce its rights in another court.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Redistribution of payments. 13.22.1 (a) If a Financier receives or recovers an amount from a Transaction Party under the Mezzanine Finance Documents other than in accordance with clause 8.9 (whether by way of voluntary or involuntary payment or by way of set-off, combination or amalgamation of accounts or otherwise, including under clause 6(f) or clause 19.7) or recovers any Lender shall exercise amount from a Transaction Party (whether under the Mezzanine Finance Documents, or otherwise) as a consequence of exercising any Encumbrance or right of counter-claim, set-off or bankers' lien combination or similar right amalgamation of accounts in respect of an account maintained with respect that Financier by a Transaction Party:
(1) the Financier must promptly advise the Mezzanine Agent that it has received or recovered the amount;
(2) the Financier must within 3 Business Days after demand by the Mezzanine Agent pay to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion Mezzanine Agent the amount thereof proportionately between:
13.22.1.1 amounts comprised in determined by the Loan Obligations owing Mezzanine Agent to such Lender, be equal to the amount (excess amount) by which amounts shall be applied the amount received or recovered exceeds the amount the Financier would have received if the amount had been paid to the Mezzanine Agent and distributed in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed clause 8.9, and to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shallextent, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion liability of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard Transaction Party to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall Financier will not be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor reduced by the Selling Lender recovery or Lenderspayment, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders other than to the extent of such recoveryany distribution received by the party under clause 8.11(a)(3);
(3) the Mezzanine Agent must treat the payment of the excess amount as if it were a payment by the Transaction Party to the Mezzanine Agent on account of all the Financiers and promptly distribute the excess amount to the Financiers in accordance with clause 8.9; and
(4) as between each Transaction Party and the Mezzanine Finance Parties, the excess amount is to be treated as not having been paid to the Financier, but without interest. Such Lender shall exercise its rights as having been paid to all the Financiers in respect of such secured claim in a manner consistent accordance with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimstheir respective entitlements.
13.22.3 (b) If an amount to which clause 8.11(a) applies is subsequently required to be repaid by the Financier who originally received or recovered it to a Transaction Party, each Mezzanine Finance Party which has received any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, part of it shall promptly provide full particulars thereof must repay that part to the Agent Financier who originally received or recovered it, and the Agent adjustments under clause 8.11(a)(4) will be reversed.
(c) Immediately upon a Financier making or becoming liable to make a payment under clause 8.11(a)(2), each Transaction Party shall promptly provide copies of such particulars indemnify the Financier against the payment to the other Lendersextent that (despite clause 8.11(a)(2)) its liability has been discharged by the recovery or payment.
Appears in 1 contract
Samples: Mezzanine Facility Agreement (Worldwide Restaurant Concepts Inc)
Redistribution of payments. 13.22.1 If 28.1 If, at any Lender shall time, the proportion which any Bank (a "Recovering Bank") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "relevant payment") to be made under this Agreement by the Borrower for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "excess amount") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed (iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf the Borrower in respect of such Obligor may be applied relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto.
28.2 If any sum (a "relevant sum") received or recovered by such Lender to such amounts owed by such Obligor to such Lender a Recovering Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
(i) each Bank which has received a share of guarantee without apportionmentsuch relevant sum by reason of the implementation of Clause 28.1 shall, upon request of the Agent, pay to the Agent for account of such Recovering Bank an amount equal to its share of such relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
13.22.2 28.3 If any Bank shall commence any action or proceeding in any court to enforce its rights hereunder and, as a Lender shallresult thereof or in connection therewith, through the exercise of a rightshall receive any excess amount (as defined in Clause 28.1), or the receipt of a secured claim described above or otherwise receives payment of a then such Bank shall not be required to share any portion of such excess amount with any Bank which has the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recoverylegal right to, but without interest. Such Lender shall exercise does not, join in such action or proceeding or commence and diligently prosecute a separate action or proceeding to enforce its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.another court. Part 10
Appears in 1 contract
Samples: Senior Subordinated Facility Agreement (Ifco Systems Nv)
Redistribution of payments. 13.22.1 If 24.1 Subject to Clause 24.2, if, at any Lender shall time, the proportion which any Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by the Borrower for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank's portion of such relevant payment; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through (iii) the exercise of a right, or Agent shall treat the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion amount received by any other Lender in respect of the aggregate it from such Recovering Bank pursuant to paragraph (i) above as if such amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment had been received by such purchasing Lender shall be recovered it from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights Borrower in respect of such secured claim relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) PRO RATA to their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to enforce its rights hereunder and, as a manner consistent with the rights of the Lenders entitled under this Section 13.22 result thereof or in connection therewith, shall receive any excess amount (as defined in Clause 24.1), then such Bank shall not be required to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies portion of such particulars excess amount with any Bank which has the legal right to, but does not, join in such action or proceeding or commence and diligently prosecute a separate action or proceeding to the other Lendersenforce its rights in another court.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Redistribution of payments. 13.22.1 (a) If, at any time, the proportion which any Lender Party (a "RECOVERING LENDER Party") has received or recovered (whether voluntary, involuntary, by application of set off, or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement or under any other Loan Document (other than any Required Hedging Agreement to which it is party) by any Obligor for the account of such Recovering Lender Party and one or more other Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Lender Party or Lender Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be distributed among the Lenders in accordance with their respective Percentages), then:
(i) such Recovering Lender Party shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from such Obligor to the Recovering Lender Party an amount equal to the amount paid out by such Recovering Lender Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Lender Party's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Lender Party pursuant to clause (a)(i) as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the same to the other Lender Parties in accordance with their respective Percentages. Within two (2) Business Days after any Lender Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Lender Party shall notify the Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums. Furthermore, no Lender Party shall be obliged to share any amount which it has received or recovered as a result of taking legal proceedings with any other Lender Party which had the opportunity to participate in those legal proceedings but did not do so and did not take separate legal proceedings to recover the relevant payments.
(b) If any sum (a "RELEVANT SUM") received or recovered by a Recovering Lender Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Lender Party, then:
(i) each Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Agent, pay to the Agent for the account of the Recovering Lender Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the relevant Obligor to each such Lender Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if it were the sum payable to such Lender Party against which such Lender Party's share of such relevant sum was applied.
(c) If any Lender shall exercise commence any right of counter-claimaction or proceeding in any court to enforce its rights hereunder after consultation with the other Lenders and, set-off as a result thereof or bankers' lien or similar right with respect in connection therewith, shall receive any excess amount (as referred to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by clause (a)) then such Lender on behalf shall not be required to share any portion of such Obligor may be applied by excess amount with any Lender which has the legal right to, but does not, join in such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary action or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender proceeding (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt had notice of such paymentaction or proceeding) in that portion of the Loan Obligations due or commence and diligently prosecute a separate action or proceeding to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise enforce its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsanother court.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Redistribution of payments. 13.22.1 (a) If any Lender shall exercise any right of counter-claim, set-off or bankers' ’ lien or similar right with respect to the property of an Obligor the Borrower or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligorthe Borrower, it shall apportion the amount thereof proportionately between:
13.22.1.1 (i) amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 (ii) amounts otherwise owed to it by such Obligorthe Borrower; provided that any cash collateral account funded by way of advances from an Obligor the Borrower as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor the Borrower may be applied by such Lender to such amounts owed by such Obligor the Borrower to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 (b) If a Lender shall, through the exercise of a right, right or the receipt of a secured claim described above or otherwise (save for any payment made to it in accordance with the provisions hereof) receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "“Selling Lender or Lenders"”) so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that that:
(i) if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor the Borrower by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights together with interest thereon at the prevailing rate applicable to interbank deposit balances calculated and payable from the Business Day following the day such return is requested until it is paid in respect full; and
(ii) if all or part of such secured claim proportionately greater payment received by such purchasing Lender is found to have been a transfer in fraud of creditors or a manner consistent preferential payment under any applicable bankruptcy or insolvency legislation or is otherwise required to be returned by such purchasing Lender, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such amount returned, together with interest thereon at the rights of prevailing rate applicable to interbank deposit balances calculated and payable from the Lenders entitled under this Section 13.22 to share Business Day following the day such return is requested until it is paid in the benefits of any recovery on such secured claimsfull.
13.22.3 (c) If any Lender does receives or recovers payment of any act amount it is required to share pursuant to Section 13.22(a) or thing permitted by subsections 13.22.1 or 13.22.2Section 13.22(b), it shall promptly provide full particulars thereof to the Administration Agent and the Administration Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Inc)
Redistribution of payments. 13.22.1 If 26.1 If, at any Lender shall time, the proportion which any Bank (a "Recovering Bank") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "relevant payment") to be made under this Agreement by an Obligor for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "excess amount") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof (which shall include a nil receipt), then:
26.1.1 such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
26.1.2 there shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances thereupon fall due from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to sub-clause 26.1.1 above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank's portion of such relevant payment; and
26.1.3 the Agent shall treat the amount received by it from such Recovering Bank pursuant to sub-clause 26.1.1 above as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to Clause 24.3.1(a) such portion of such excess amount as is so attributable shall not be required to be shared pursuant hereto.
26.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank in respect of any amount owing to it by an Obligor becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
26.2.1 each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 26.1 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and the Agent shall promptly provide copies for account of such particulars Recovering Bank an amount equal to its share of such relevant sum; and
26.2.2 there shall thereupon fall due from such Obligor to each such Bank an amount equal to the amount paid out by it pursuant to sub-clause 26.2.1 above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
26.3 A Bank shall not be obliged to share any amount with any other LendersBank which it has received or recovered as a result of taking legal proceedings where such other Bank had an opportunity to participate in those legal proceedings but did not do so and did not take separate legal proceedings.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Mbna Corp)
Redistribution of payments. 13.22.1 If any Lender shall exercise any right of counter-claim, set-off or bankers' lien or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately betweenIf:
13.22.1.1 amounts comprised in 11.10.1 any particular sum (a “Due Sum”) becomes payable pursuant hereto or pursuant to a Hedging Agreement by any Borrower to any of the Loan Obligations owing to Lenders or the Hedging Bank; and
11.10.2 the full amount of such Lender, which amounts shall be applied Due Sum is not paid in accordance with the provisions of this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that 11.10.3 any cash collateral account funded Lender or the Hedging Bank (an “Excess Amount Lender”) receives or recovers by way of advances from an Obligor as collateral for a documentary set-off, counterclaim, combination of accounts, legal proceedings or standby credit other action all or letter of guarantee issued by such Lender on behalf any part of such Obligor may be applied by such Lender Due Sum which is owed to such amounts Excess Amount Lender; and
11.10.4 the proportion which such Excess Amount Lender has so received or recovered of that share of the Due Sum actually owed by such Obligor to such Excess Amount Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than exceeds the proportion so received or recovered by any other Lender in respect or Hedging Bank which is also owed a share of such Due Sum (the aggregate amount of the Loan Obligations due excess an “Excess Amount”), then:
(a) such Excess Amount Lender shall pay to the Facility Agent an amount equal to such other Lender Excess Amount; and
(having regard b) an amount equal to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which Excess Amount shall be done simultaneously with receipt of such payment) in that portion of deemed not to have been paid by the Loan Obligations due payer to or received or recovered by the Excess Amount Lender but paid to the other Lender or Lenders (Facility Agent by the "Selling Lender or Lenders") so that the respective receipts relevant Borrower and shall be pro rata according to their Rateable Shares; provided, however, that distributed by the Facility Agent in accordance with the provisions of this Agreement as if all or part of such proportionately greater payment originally received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsFacility Agent.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Fly Leasing LTD)
Redistribution of payments. 13.22.1 (a) If, at any time, the proportion which any Lender Party (a "RECOVERING LENDER PARTY") has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement or under any other Loan Document (other than any Risk Management Agreement to which it is party) by any Obligor for the account of such Recovering Lender Party and one or more other Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Lender Party or Lender Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be distributed among the Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Lender Party shall pay to the Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Lender Party an amount equal to the amount paid out by such Recovering Lender Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Lender Party's portion of such relevant payment; and
(iii) the Facility Agent shall treat the amount received by it from such Recovering Lender Party pursuant to clause (a)(i) as if such amount had been received by it from the Borrower in respect of such relevant payment and shall pay the same to the other Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Lender Party receives or recovers any relevant payment otherwise than by payment through the Facility Agent, that Lender Party shall notify the Facility Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(b) If any sum (a "RELEVANT SUM") received or recovered by a Recovering Lender Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Lender Party, then:
(i) each Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Facility Agent, pay to the Facility Agent for the account of the Recovering Lender Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Lender Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if it were the sum payable to such Lender Party against which such Lender Party's share of such relevant sum was applied.
(c) If any Lender shall exercise commence any right of counter-claim, set-off action or bankers' lien proceeding in any court to enforce its rights hereunder or similar right with respect to the property of an Obligor or if under any applicable bankruptcyother Loan Document after consultation with the other Lenders and, insolvency as a result thereof or other similar law it receives a secured claim the security for which is a debt owed by it in connection therewith, shall receive any excess amount (as referred to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by clause (a)) then such Lender on behalf shall not be required to share any portion of such Obligor may be applied by excess amount with any Lender which has the legal right to, but does not, join in such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary action or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender proceeding (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt had notice of such paymentaction or proceeding) in that portion of the Loan Obligations due or commence and diligently prosecute a separate action or proceeding to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise enforce its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsrights.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Samples: Project Term Loan Facility Agreement (Randgold Resources LTD)
Redistribution of payments. 13.22.1 If 27.1 If, at any Lender shall time, the proportion which any Bank (a “Recovering Bank") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a “relevant payment") to be made under this Agreement by an Obligor for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an “excess amount") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof (which shall include a nil receipt), then:
27.1.1 such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
27.1.2 there shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances thereupon fall due from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to sub-clause 27.1.1 above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank’s portion of such relevant payment; and
27.1.3 the Agent shall treat the amount received by it from such Recovering Bank pursuant to sub-clause 27.1.1 above as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to Clause 25.3.1(a) such portion of such excess amount as is so attributable shall not be required to be shared pursuant hereto.
27.2 If any sum (a “relevant sum”) received or recovered by a Recovering Bank in respect of any amount owing to it by an Obligor becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
27.2.1 each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 27.1 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and the Agent shall promptly provide copies for account of such particulars Recovering Bank an amount equal to its share of such relevant sum; and
27.2.2 there shall thereupon fall due from such Obligor to each such Bank an amount equal to the amount paid out by it pursuant to sub-clause 27.2.1 above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank’s share of such relevant sum was applied.
27.3 A Bank shall not be obliged to share any amount with any other LendersBank which it has received or recovered as a result of taking legal proceedings where such other Bank had an opportunity to participate in those legal proceedings but did not do so and did not take separate legal proceedings.
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Sterling Acceptance Facility Agreement (Mbna Corp)
Redistribution of payments. 13.22.1 If 27.1 If, at any Lender shall time, the proportion which a Bank (a "RECOVERING BANK") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by the Borrower for account of such Recovering Bank and the other Bank is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by the Bank so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcyamount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, insolvency or other similar law it receives a secured claim the security amount so due being, for which is a debt owed the purposes hereof, treated
(iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such Obligor, amount had been received by it shall apportion from the amount thereof proportionately between:
13.22.1.1 amounts comprised Borrower in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf respect of such Obligor may be applied relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto.
27.2 If any sum (a "RELEVANT SUM") received or recovered by such Lender to such amounts owed by such Obligor to such Lender a Recovering Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
(i) each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 27.1 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and for the Agent shall promptly provide copies account of such particulars Recovering Bank an amount equal to its share of such relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Bank an amount equal to the other Lendersamount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
Appears in 1 contract
Redistribution of payments. 13.22.1 (a) If, at any time, the proportion which any Finance Party (a "RECOVERING FINANCE PARTY") has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement or under any other Finance Document (other than any Risk Management Agreement to which it is party) by any Obligor for the account of such Recovering Finance Party and one or more other Finance Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Finance Party or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be distributed among the Lenders in accordance with their respective Funding Percentages), then:
(i) such Recovering Finance Party shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Finance Party an amount equal to the amount paid out by such Recovering Finance Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Finance Party's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party pursuant to clause (a)(i) as if such amount had been received by it from the Borrower in respect of such relevant payment and shall pay the same to the other Finance Parties in accordance with their respective Funding Percentages. Within two (2) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party shall notify the Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(b) If any sum (a "RELEVANT SUM") received or recovered by a Recovering Finance Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance Party, then:
(i) each Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Agent, pay to the Agent for the account of the Recovering Finance Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Finance Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if it were the sum payable to such Finance Party against which such Finance Party's share of such relevant sum was applied.
(c) If any Lender shall exercise commence any right of counter-claim, set-off action or bankers' lien proceeding in any court to enforce its rights hereunder or similar right with respect to the property of an Obligor or if under any applicable bankruptcyother Finance Document after consultation with the other Lenders and, insolvency as a result thereof or other similar law it receives a secured claim the security for which is a debt owed by it in connection therewith, shall receive any excess amount (as referred to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by clause (a)) then such Lender on behalf shall not be required to share any portion of such Obligor may be applied by excess amount with any Lender which has the legal right to, but does not, join in such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary action or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender proceeding (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt had notice of such paymentaction or proceeding) in that portion of the Loan Obligations due or commence and diligently prosecute a separate action or proceeding to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise enforce its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsrights.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Randgold Resources LTD)
Redistribution of payments. 13.22.1 If If, at any Lender shall time, the proportion which any Bank (a “Recovering Bank”) has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a “relevant payment”) to be made under this Agreement by an Obligor for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an “excess amount”) than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall inform the Agent of such receipt or recovery and pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion thereupon fall due from the Obligor to such Recovering Bank an amount equal to the amount thereof proportionately between:
13.22.1.1 amounts comprised in paid out by such Recovering Bank pursuant to paragraph (i) above, the Loan Obligations owing to amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Lender, which amounts shall be applied in accordance with this AgreementRecovering Bank’s portion of such relevant payment; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through (iii) the exercise of a right, or Agent shall treat the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion amount received by any other Lender in respect of the aggregate it from such Recovering Bank pursuant to paragraph (i) above as if such amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment had been received by such purchasing Lender shall be recovered it from an the Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with relevant payment and shall pay the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof same to the Agent and persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the Agent shall promptly provide copies extent that any excess amount is attributable to a payment to a Bank pursuant to paragraph (i)(a) of Clause 20.3 (Payments by the Agent) such portion of such particulars excess amount as is so attributable shall not be required to the other Lendersbe shared pursuant hereto.
Appears in 1 contract
Redistribution of payments. 13.22.1 (a) If, at any time, the proportion which any Lender Party (a "RECOVERING LENDER PARTY") has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement or under any other Loan Document (other than any Hedging Agreement to which it is party) by any Obligor for the account of such Recovering Lender Party and one or more other Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Lender Party or Lender Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be distributed among the Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Lender Party shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Lender Party an amount equal to the amount paid out by such Recovering Lender Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Lender Party's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Lender Party pursuant to clause (a)(i) as if such amount had been received by it from the Borrower in respect of such relevant payment and shall pay the same to the other Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Lender Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Lender Party shall notify the Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(b) If any sum (a "RELEVANT SUM") received or recovered by a Recovering Lender Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Lender Party, then:
(i) each Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Agent, pay to the Agent for the account of the Recovering Lender Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Lender Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if it were the sum payable to such Lender Party against which such Lender Party's share of such relevant sum was applied.
(c) If any Lender shall exercise commence any right of counter-claim, set-off action or bankers' lien proceeding in any court to enforce its rights hereunder or similar right with respect to the property of an Obligor or if under any applicable bankruptcyother Loan Document after consultation with the other Lenders and, insolvency as a result thereof or other similar law it receives a secured claim the security for which is a debt owed by it in connection therewith, shall receive any excess amount (as referred to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by clause (a)) then such Lender on behalf shall not be required to share any portion of such Obligor may be applied by excess amount with any Lender which has the legal right to, but does not, join in such Lender to such amounts owed by such Obligor to such Lender in respect of any such documentary action or standby credit or letter of guarantee without apportionment.
13.22.2 If a Lender shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender proceeding (having regard to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt had notice of such paymentaction or proceeding) in that portion of the Loan Obligations due or commence and diligently prosecute a separate action or proceeding to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise enforce its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claimsrights.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof to the Agent and the Agent shall promptly provide copies of such particulars to the other Lenders.
Appears in 1 contract
Redistribution of payments. 13.22.1 If 25.1 If, at any Lender shall time, the proportion which any Bank (a "Recovering Bank") has received or recovered (whether by payment, the exercise any of a right of counter-claim, set-off or bankers' lien combination of accounts or similar right with otherwise) in respect of its portion of any payment (a "relevant payment") to be made under this Agreement by either of the Obligors for account of such Recovering Bank and one or more other Banks is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "excess amount") than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the property of Agent an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it amount equal to such Obligor, it excess amount;
(ii) there shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances thereupon fall due from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to Clause 23.3(i)(a) such portion of such excess amount as is so attributable shall not be required to be shared pursuant hereto.
25.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank in respect of any amount owing to it by either of the Obligors becomes repayable and is repaid by such documentary or standby credit or letter Recovering Bank, then:
(i) each Bank which has received a share of guarantee without apportionment.
13.22.2 If a Lender such relevant sum by reason of the implementation of Clause 25.1 shall, through the exercise of a right, or the receipt of a secured claim described above or otherwise receives payment of a portion upon request of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)Agent, the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their Rateable Shares; provided, however, that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, but without interest. Such Lender shall exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 13.22 to share in the benefits of any recovery on such secured claims.
13.22.3 If any Lender does any act or thing permitted by subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof pay to the Agent and the Agent shall promptly provide copies for account of such particulars Recovering Bank an amount equal to its share of such relevant sum together with its share of such amount (if any) as is necessary to reimburse the Recovering Bank for any interest it shall have been obliged to pay to either of the Obligors in respect thereof when repaying such relevant sum to such Obligor; and
(ii) there shall thereupon fall due from such Obligor to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
25.3 A Bank shall not be obliged to share any amount pursuant to clause 25.1 if it has received or recovered such amount as a result of any legal proceedings with any other Lenders.Bank which had an opportunity to participate in those legal proceedings but did not do so and did not separately take equivalent legal proceedings. FEES, COSTS AND EXPENSES
Appears in 1 contract
Samples: Multicurrency Revolving Credit Facility Agreement (Incentive Ab)
