Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Party (a "Recovering Senior 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 Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 Senior Lenders in accordance with their 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 (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 from the Borrower in respect of such 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 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 a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then: (i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied. (c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Lender Party (a "Recovering Senior Finance RECOVERING LENDER Party") has received or recovered (whether voluntary, involuntary, by application of set off off, or otherwise) in respect of its portion of any payment (a "relevant paymentRELEVANT PAYMENT") to be made under this Agreement or under any other Finance Loan Document (other than any Risk Management Required Hedging Agreement to which it is party) by any Obligor for the account of such Recovering Senior Finance Lender Party and one or more other Senior Finance Lender Parties is greater (the amount of such excess being herein called an "excess amountEXCESS AMOUNT") than the proportion thereof received or recovered by the Senior Finance Lender Party or Senior Finance 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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Lender Party shall pay to the Principal Facilities Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower such Obligor to the Recovering Senior Finance Lender Party an amount equal to the amount paid out by such Recovering Senior Finance 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 Senior Finance Lender Party's portion of such relevant payment; and
(iii) the Principal Facilities Agent shall treat the amount received by it from such Recovering Senior Finance Lender Party pursuant to clause (a)(i) as if such amount had been received by it from the Borrower such Obligor in respect of such relevant payment and shall pay the same to the other Senior Finance Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Senior Finance Lender Party receives or recovers any relevant payment otherwise than by payment through the Principal Facilities Agent, that Senior Finance Lender 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. 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 sumRELEVANT SUM") received or recovered by a Recovering Senior Finance Lender Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Lender Party, then:
(i) each Senior Finance Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior Finance Lender Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower relevant Obligor to each such Senior Finance 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 Senior Finance Lender Party against which such Senior Finance Lender Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 rightsrights in another court.
(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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Redistribution of payments. (a) If, If at any timetime prior to the Lenders' declaration that all Obligations are due and payable pursuant to Section 10.02, the proportion which any Senior Finance Party Lender (a an "Recovering Senior Finance PartyOverpaid Lender") has received or recovered any amount (an "Excess Amount") in payment on account of the Obligations of one of the Borrowers to such Overpaid Lender (whether voluntaryby means of a voluntary or involuntary payment by such Borrower, involuntary, by application through the exercise of set a right of set-off or otherwise) which is in excess of the Overpaid Lender's Rateable Portion of the aggregate of all payments on account of the Obligations of such Borrower to the Lenders in respect of its portion of any the Obligations, then: such Overpaid Lender shall pay to the Agent an amount equal to the Excess Amount; the Agent shall treat such payment (as a "relevant payment") payment made 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 Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by the Senior Finance Party Canadian Borrower or Senior Finance Parties entitled the U.S. Borrower, as the case may be, in respect of Loans outstanding under the applicable Tranche to participate in the payment Obligation to which applicable Lenders and shall distribute 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 Senior applicable Lenders in accordance with their respective relevant Funding Percentages)Rateable Portions; as between the Canadian Borrower or the U.S. Borrower, then:
(i) as the case may be, and each applicable Lender, the portion of the Excess Amount received by the Lender from the Agent shall be treated as having been paid by such Recovering Senior Finance Party shall pay to the Principal Facilities Agent an amount equal Borrower 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
(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 from the Borrower Lender in respect of such relevant payment Obligations on the day of the receipt thereof; and the Agent shall pay the same give notice to the other Senior Finance Parties in accordance with their respective Canadian Borrower or the U.S. Borrower, as the case may be, of all relevant Funding Percentages. Within two (2) Business Days after any Senior Finance Party receives or recovers any relevant particulars of the payment otherwise than by payment through to the Principal Facilities Agent, that Senior Finance Party shall notify the Principal Facilities Agent of the amount Excess 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 the redistribution by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share the Agent of such relevant sum payment; provided that if the Overpaid Lender is subsequently required (whether by reason order of a court or otherwise) to repay any portion of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay Excess Amount to the Principal Facilities Canadian Borrower or the U.S. Borrower, each Lender shall forthwith pay its Rateable Portion of such portion to the Agent for the account of the Recovering Senior Finance Party an amount equal Overpaid Lender. For the purposes of paragraph (b) above and the proviso to its share this Section 11.15, the Rateable Portion of any Lender shall be calculated with reference to any Loans outstanding under the applicable Tranche in respect of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 Overpaid Lender.
(e) Notwithstanding anything to the contrary contained in this Agreement or any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Redistribution of payments. (a) If13.22.1 If any Lender shall exercise any right of counter-claim, at any time, the proportion which any Senior Finance Party (a "Recovering Senior Finance Party") has received or recovered (whether voluntary, involuntary, by application of set set-off or otherwise) 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 its 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 any payment (a "relevant payment") the Loan Obligations due to be made under this Agreement or under any other Finance Document (other than any Risk Management Agreement to it which it is party) by any Obligor for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by any other Lender in respect of the Senior Finance Party or Senior Finance Parties entitled aggregate amount of the Loan Obligations due to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof other Lender (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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Party shall pay having regard to the Principal Facilities Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from respective Rateable Shares of 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)(iLenders), the amount 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 due being treatedthat the respective receipts shall be pro rata according to their Rateable Shares; provided, for the purposes hereofhowever, as that if it were an unpaid all or part of such Recovering Senior Finance Party's portion 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 relevant payment; and
(iii) the Principal Facilities Agent recovery, but without interest. Such Lender 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 from the Borrower exercise its rights in respect of such relevant payment 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 pay the same promptly provide copies of such particulars 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 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 sumsLenders.
(b) If any sum (a "relevant sum") received or recovered by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Redistribution of payments. (a) If15.22.1 Disproportionate Receipts to be Shared. Except for any payment that is required to be shared pursuant to Subsection 15.22.2, at if a Lender, through the exercise of any time, the proportion which any Senior Finance Party (a "Recovering Senior Finance Party") has received or recovered (whether voluntary, involuntary, by application right of set set-off or otherwise) in respect of its portion of any payment otherwise (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 save for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 Senior Lenders in accordance with their 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
(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 from the Borrower in respect of such 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 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 a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 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 provider other Lender in respect of Political Risk Insurance 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 any Uncovered Lender.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:
(ea) Notwithstanding anything to the contrary contained in this Agreement if all or any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any part of such proportionately greater payment received by such purchasing Lender shall be recovered from 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 account extent of IFC or Export Development Canada such recovery, 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 freely convertible and transferable currencies ("Convertible Currencies") under circumstances wherefull; and
(ib) there if all or part of such proportionately greater payment received by such purchasing Lender is an unavailability found to have been a transfer in fraud of creditors or shortage of foreign exchange in Russia;
(ii) there has occurred a moratorium preferential payment under any applicable bankruptcy or general debt rescheduling with respect to indebtedness of entities in Russia; or
(iii) the Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but where IFC or Export Development Canada is either being exempted from such foreign exchange restrictions insolvency legislation or is otherwise afforded preferential treatment required to be returned by foreign currency being made available such purchasing Lender, such purchase shall be rescinded and the purchase price paid for obligations owed such participation shall be returned by such Selling Lender or Lenders to the extent of such amount returned, 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 Convertible Currenciesfull.
Appears in 1 contract
Samples: Credit Agreement (MDC Partners Inc)
Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Lender Party (a "Recovering Senior Finance PartyRECOVERING 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 paymentRELEVANT PAYMENT") to be made under this Agreement or under any other Finance Loan Document (other than any Risk Management Agreement to which it is party) by any Obligor for the account of such Recovering Senior Finance Lender Party and one or more other Senior Finance Lender Parties is greater (the amount of such excess being herein called an "excess amountEXCESS AMOUNT") than the proportion thereof received or recovered by the Senior Finance Lender Party or Senior Finance 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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Lender Party shall pay to the Principal Facilities Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Senior Finance Lender Party an amount equal to the amount paid out by such Recovering Senior Finance 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 Senior Finance Lender Party's portion of such relevant payment; and
(iii) the Principal Facilities Facility Agent shall treat the amount received by it from such Recovering Senior Finance 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 Senior Finance Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Senior Finance Lender Party receives or recovers any relevant payment otherwise than by payment through the Principal Facilities Facility Agent, that Senior Finance Lender Party shall notify the Principal Facilities 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 sumRELEVANT SUM") received or recovered by a Recovering Senior Finance Lender Party in respect of any amount owing to it by any Obligor the Borrower becomes repayable and is repaid by such Recovering Senior Finance Lender Party, then:
(i) each Senior Finance Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Facility Agent, pay to the Principal Facilities Facility Agent for the account of the Recovering Senior Finance 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 Senior Finance 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 Senior Finance Lender Party against which such Senior Finance Lender Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Loan 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Samples: Project Term Loan Facility Agreement (Randgold Resources LTD)
Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Party (a "Recovering Senior Finance PartyRECOVERING 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 paymentRELEVANT 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 Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amountEXCESS AMOUNT") than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 Senior Lenders in accordance with their 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
(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 from the Borrower in respect of such 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 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 sumRELEVANT SUM") received or recovered by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor the Borrower becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Randgold Resources LTD)
Redistribution of payments. In the event that a repayment under Section 2.05 or a prepayment under Section 2.08 is required to be redistributed by the Lenders to the lenders (athe "Other Lenders") Ifunder another Permitted Loan Agreement (as defined in the 42 Intercreditor Agreement) pursuant to Section 4.2 or 4.3 of the Intercreditor Agreement, at (i) the Borrower authorizes the Lenders to act as its agent in connection with such redistribution and make such redistribution to the Other Lenders on its behalf and acknowledges that any timeamount so redistributed shall be deemed not to have been paid by the Borrower to the Lenders in their capacity as Lenders hereunder and (ii) the Lenders agree to act as agent for the Borrower in connection with such redistribution and agree to make such redistribution to the Other Lenders on its behalf. In the event that a repayment or prepayment made by the Borrower pursuant to another Permitted Loan Agreement to the Other Lenders party thereto is required to be redistributed by such Other Lenders pursuant to Section 4.2 or 4.3 of the Intercreditor Agreement, the proportion which Lenders acknowledge that any Senior Finance Party amount so redistributed (a "Recovering Senior Finance Party"I) has received or recovered shall have been paid by the Other Lenders acting as agent for the Borrower in connection with such redistribution, (whether voluntary, involuntary, II) shall be deemed to have been paid by application of set off or otherwise) the Borrower to the Lenders in respect of its portion of any payment the Advances pursuant to Section 2.05 or 2.08, as the case may be, and (a "relevant payment"III) to shall 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 Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 allocated among the Senior Lenders in accordance with their 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
(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 from the Borrower in respect of such 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 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 sumsSection 2.12.
(b) If any sum (a "relevant sum") received or recovered by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Party (a "“Recovering Senior 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 partyParty) by any Obligor for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "“excess amount"”) than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Party shall pay to the Principal Facilities Facility 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 ’s portion of such relevant payment; and
(iii) the Principal Facilities Facility 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 from the Borrower in respect of such 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 payment through the Principal Facilities Facility Agent, that Senior Finance Party shall notify the Principal Facilities 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 Senior Finance Party in respect of any amount owing to it by any Obligor the Borrower becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Facility Agent, pay to the Principal Facilities Facility Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's ’s share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Samples: Loan Agreement (Yamana Gold Inc)
Redistribution of payments. (a) IfIf any Lender shall exercise any right of counter-claim, at any time, the proportion which any Senior Finance Party (a "Recovering Senior Finance Party") has received or recovered (whether voluntary, involuntary, by application of set set-off or otherwise) in bankers’ lien or similar right with respect to the property of its portion of any payment (a "relevant payment") to be made under this Agreement the Borrower or if under any applicable bankruptcy, insolvency or other Finance Document (other than any Risk Management Agreement similar law it receives a secured claim the security for which is a debt owed by it to which the Borrower, it is party) by any Obligor for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater (shall apportion the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 Senior Lenders in accordance with their respective relevant Funding Percentages), thenproportionately between:
(i) such Recovering Senior Finance Party shall pay to amounts comprised in the Principal Facilities Agent an amount equal Loan Obligations owing to such excess amount;Lender, which amounts shall be applied in accordance with this Agreement; and
(ii) there shall thereupon fall due amounts otherwise owed to it by the Borrower; provided that any cash collateral account funded by way of advances from the Borrower to the Recovering Senior Finance Party an amount equal to the amount paid out as collateral for a documentary or standby credit or letter of guarantee issued 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 Lender on behalf of such Recovering Senior Finance Party's portion of such relevant payment; and
(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 from the Borrower may be applied by such Lender to such amounts owed by the Borrower to such Lender in respect of any such 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 documentary or recovers any relevant payment otherwise than by payment through the Principal Facilities Agent, that Senior Finance Party shall notify the Principal Facilities Agent standby credit or letter of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sumsguarantee without apportionment.
(b) If a Lender through the exercise of a right or the receipt of a secured claim described above or otherwise (save for any sum (payment made to it in accordance with the provisions hereof) receives payment of a "relevant sum") portion of the Loan Obligations due to it which is greater than the proportion received or recovered by a Recovering Senior Finance Party any other Lender in respect of any the aggregate amount owing of the Loan Obligations due to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Partyother Lender (having regard to the respective Rateable Shares of the Lenders), thenthe 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:
(i) each Senior Finance Party which has received a share if all or part of such relevant sum proportionately greater payment received by reason of such purchasing Lender shall be recovered from the implementation of clause (a) shallBorrower by the Selling Lender or Lenders, upon request of such purchase shall be rescinded and the Principal Facilities Agent, pay purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the Principal Facilities Agent for extent of such recovery, together with interest thereon at the account of prevailing rate applicable to interbank deposit balances calculated and payable from the Recovering Senior Finance Party an amount equal to its share of Business Day following the relevant sumday such return is requested until it is paid in full; and
(ii) there if all or part of such proportionately greater payment received by such purchasing Lender is found to have been a transfer in fraud of creditors or a preferential payment under any applicable bankruptcy or insolvency legislation or is otherwise required to be returned by such purchasing Lender, such purchase shall thereupon fall due 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 prevailing rate applicable to interbank deposit balances calculated and payable from the Borrower to each Business Day following the day such Senior Finance Party an amount equal to the amount return is requested until it is 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was appliedin full.
(c) If any Senior Lender shall commence receives or recovers payment of any action or proceeding in 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 it is required to share any portion pursuant to Section 13.22(a) or Section 13.22(b), it shall promptly provide full particulars thereof to the Administration Agent and the Administration Agent shall promptly provide copies of such excess amount with any Senior Lender which has the 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 particulars 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 LenderLenders.
(e) Notwithstanding anything to the contrary contained in this Agreement or any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Inc)
Redistribution of payments. 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 (a) Ifif any), if, at any time, the proportion which any Senior Finance Party Lender (a "Recovering Senior Finance PartyLender") has received shall receive or recovered recover (whether voluntaryby payment, involuntary, by application the exercise of set a right of set-off or combination of accounts or otherwise) in respect of its portion all or part of any payment amount payable to a Lender (a "relevant payment"Relevant Payment'') to be made under this Agreement or under any other that Finance Document (other than by an Obligor in a proportion which, in relation to any Risk Management Agreement to which it is party) amounts received by any Obligor for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater Lenders, represents more than its proportional Participation in such amount payable (the amount of such excess being herein called in this Agreement an "excess amountExcess Amount") than the proportion thereof received or recovered by the Senior Finance Party or Senior 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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(ia) such Recovering Senior Finance Party Lender shall pay to the Principal Facilities Facility Agent an amount equal to such excess amountthe Excess Amount;
(iib) there shall thereupon fall become due from the Borrower such Obligor to the Recovering Senior Finance Party Lender an amount equal to the amount paid out by such the Recovering Senior Finance Party Lender pursuant to clause paragraph (a)(i)a) of this Clause 23.1, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such the Recovering Senior Finance PartyLender's portion of such relevant paymentthe Relevant Payment; and
(iiic) the Principal Facilities Facility Agent shall treat the amount received by it from such the Recovering Senior Finance Party Lender pursuant to clause paragraph (a)(ia) of this Clause 23.1 above as if such amount had been received by it the Facility Agent from the Borrower an Obligor in respect of such relevant payment Relevant Payment and shall pay the same distribute such amount to the other Senior Finance Parties in accordance with persons entitled to the Relevant Payment (including the Recovering Lender) pro rata to their respective relevant Funding Percentages. Within two (2) Business Days after any Senior Finance Party receives or recovers any relevant payment otherwise than by 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 sumsentitlements thereto.
(b) If any sum (a "relevant sum") received or recovered by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Redistribution of payments. (a) If13.22.1. If any Lender shall exercise any right of counter-claim, at any time, the proportion which any Senior Finance Party (a "Recovering Senior Finance Party") has received or recovered (whether voluntary, involuntary, by application of set set-off or otherwise) bankers' lien or similar right with respect to the property of a Gerdau Canada Group Member 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 Gerdau Canada Group Member, 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 Gerdau Canada Group Member; provided that any cash collateral account funded by way of advances from a Gerdau Canada Group Member as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Gerdau Canada Group Member may be applied by such Lender to such amounts owed by such Gerdau Canada Group Member to such Lender in respect of its 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 any payment (a "relevant payment") the Loan Obligations due to be made under this Agreement or under any other Finance Document (other than any Risk Management Agreement to it which it is party) by any Obligor for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by any other Lender in respect of the Senior Finance Party or Senior Finance Parties entitled aggregate amount of the Loan Obligations due to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof other Lender (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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Party shall pay having regard to the Principal Facilities Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from respective Rateable Shares of 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)(iLenders), the amount 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 due being treatedthat the respective receipts shall be pro rata according to their Rateable Shares; provided, for the purposes hereofhowever, as that if it were an unpaid all or part of such Recovering Senior Finance Party's portion proportionately greater payment received by such purchasing Lender shall be recovered from the Gerdau Canada 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 relevant payment; and
(iii) the Principal Facilities Agent recovery, but without interest. Such Lender 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 from the Borrower exercise its rights in respect of such relevant payment 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 pay the same promptly provide copies of such particulars 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 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 sumsLenders.
(b) If any sum (a "relevant sum") received or recovered by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior 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 Senior 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 Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
Appears in 1 contract
Samples: Loan Agreement (Gerdau Usa Inc)
Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Lender Party (a "Recovering Senior Finance PartyRECOVERING 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 paymentRELEVANT PAYMENT") to be made under this Agreement or under any other Finance Loan Document (other than any Risk Management Hedging Agreement to which it is party) by any Obligor for the account of such Recovering Senior Finance Lender Party and one or more other Senior Finance Lender Parties is greater (the amount of such excess being herein called an "excess amountEXCESS AMOUNT") than the proportion thereof received or recovered by the Senior Finance Lender Party or Senior Finance 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 Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Lender 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 Lender Party an amount equal to the amount paid out by such Recovering Senior Finance 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 Senior Finance Lender Party's portion of such relevant payment; and
(iii) the Principal Facilities Agent shall treat the amount received by it from such Recovering Senior Finance 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 Senior Finance Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Senior Finance Lender Party receives or recovers any relevant payment otherwise than by payment through the Principal Facilities Agent, that Senior Finance Lender 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 sumRELEVANT SUM") received or recovered by a Recovering Senior Finance Lender Party in respect of any amount owing to it by any Obligor the Borrower becomes repayable and is repaid by such Recovering Senior Finance Lender Party, then:
(i) each Senior Finance Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior Finance 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 Senior Finance 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 Senior Finance Lender Party against which such Senior Finance Lender Party's share of such relevant sum was applied.
(c) If any Senior Lender shall commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Loan 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 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 any other Finance Document, neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall have any obligation to share any payment received by 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 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 Central Bank of Russia or any other authority having the power to regulate foreign exchange is not generally permitting the conversion of the Rouble into Convertible Currencies, but 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 Convertible Currencies.
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