Redistribution of payments. (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 commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Randgold Resources LTD)
Redistribution of payments. (a) If, at any time, the proportion which any Finance Lender Party (a "RECOVERING FINANCE PARTYLENDER 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 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 Finance Lender Party and one or more other Finance Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Finance Lender Party or 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 Lenders in accordance with their respective Funding Percentages), then:
(i) such Recovering Finance Lender Party shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower such Obligor to the Recovering Finance Lender Party an amount equal to the amount paid out by such Recovering 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 Finance Lender Party's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering 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 Finance Lender Parties in accordance with their respective Funding Percentages. Within two (2) Business Days after any Finance Lender Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance 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 Finance Lender Party in respect of any amount owing to it by the Borrower any Obligor becomes repayable and is repaid by such Recovering Finance Lender Party, then:
(i) each 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 Agent, pay to the Agent for the account of the Recovering 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 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 Finance Lender Party against which such Finance Lender Party's share of such relevant sum was applied.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for any payment that is required to be shared pursuant to Subsection 15.22.2, if a Lender, through the exercise of any right of 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:
(a) If, at any time, the proportion which any Finance Party (a "RECOVERING FINANCE PARTY") has received if all 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 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 extent of such recovery, together with interest thereon at the relevant paymentinterbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full; and
(iiib) the Agent shall treat the amount if all or part of such proportionately greater payment received by it from such Recovering Finance Party pursuant purchasing Lender is found to clause (a)(i) as if 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 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 had been received by it returned, together with interest thereon at the relevant interbank rate calculated and payable from the Borrower Business Day following the day such return is requested until it is paid 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 sumsfull.
(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 commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Sources: Credit Agreement (MDC Partners Inc)
Redistribution of payments. (a) 27.1 If, at any time, the proportion which any Finance Party a Bank (a "RECOVERING FINANCE PARTYBANK") has received or recovered (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 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 the Borrower for the account of such Recovering Finance Party Bank and one or more the other Finance Parties Bank is greater (the amount 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 Finance Party or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Bank so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, as if it were an unpaid part of such Recovering Finance Party's portion of such relevant payment; andtreated
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above 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 persons entitled thereto (including such Recovering Bank) pro rata to 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 sumsentitlements thereto.
(b) 27.2 If any sum (a "RELEVANT SUM") received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 27.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to clause paragraph (b)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Redistribution of payments. (a) 25.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYRecovering Bank") has received or recovered (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 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 either of the Obligors for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNTexcess amount") than the proportion thereof so received or recovered by the Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower such Obligor to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above 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 Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to their respective Funding Percentages. Within two (2entitlements 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) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party such portion of such excess amount as is so attributable 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 sumsnot be required to be shared pursuant hereto.
(b) 25.2 If any sum (a "RELEVANT SUMrelevant sum") received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by either of the Borrower Obligors becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 25.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party 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 sumsum to such Obligor; and
(ii) there shall thereupon fall due from the Borrower such Obligor to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to clause paragraph (b)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) If 25.3 A Bank shall not be obliged to share any Lender shall commence any action amount pursuant to clause 25.1 if it has received or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, recovered such amount as a result thereof or in connection therewith, shall receive of any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount legal proceedings with any Lender other Bank which has the had an opportunity to participate in those legal right toproceedings but did not do so and did not separately take equivalent legal proceedings. FEES, 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.COSTS AND EXPENSES
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Incentive Ab)
Redistribution of payments. If:
11.10.1 any particular sum (aa “Due Sum”) Ifbecomes payable pursuant hereto or pursuant to a Hedging Agreement by any Borrower to any of the Lenders or the Hedging Bank; and
11.10.2 the full amount of such Due Sum is not paid in accordance with the provisions of this Agreement; and
11.10.3 any Lender or the Hedging Bank (an “Excess Amount Lender”) receives or recovers by way of set-off, at counterclaim, combination of accounts, legal proceedings or other action all or any time, part of such Due Sum which is owed to such Excess Amount Lender; and
11.10.4 the proportion which any Finance Party (a "RECOVERING FINANCE PARTY") such Excess Amount Lender has so received or recovered (whether voluntary, involuntary, of that share of the Due Sum actually owed to such Excess Amount Lender exceeds the proportion so received or recovered 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 Lender or Hedging Bank which it is party) by any Obligor for the account also owed a share of such Recovering Finance Party and one or more other Finance Parties is greater Due Sum (the amount of such the 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“Excess Amount”), then:
(ia) such Recovering Finance Party Excess Amount Lender shall pay to the Facility Agent an amount equal to such excess amount;Excess Amount; and
(iib) there shall thereupon fall due from the Borrower to the Recovering Finance Party an amount equal to the amount Excess Amount shall be deemed not to have been paid out by such Recovering Finance Party pursuant the payer 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 the Excess Amount Lender but paid to it the Facility Agent by the relevant Borrower becomes repayable and is repaid shall be distributed by such Recovering Finance Party, then:
(i) each Finance Party which has received a share the Facility Agent in accordance with the provisions 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, this Agreement as if it were originally received by the sum payable to such Finance Party against which such Finance Party's share of such relevant sum was appliedFacility Agent.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Fly Leasing LTD)
Redistribution of payments. (a) If, at any time, the proportion which any Finance Lender Party (a "RECOVERING FINANCE 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 Finance Loan Document (other than any Risk Management Hedging Agreement to which it is party) by any Obligor for the account of such Recovering Finance Lender Party and one or more other Finance Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Finance Lender Party or 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 Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Finance 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 Finance Lender Party an amount equal to the amount paid out by such Recovering 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 Finance Lender Party's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering 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 Finance Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Finance Lender Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance 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 Finance Lender Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance Lender Party, then:
(i) each 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 Agent, pay to the Agent for the account of the Recovering 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 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 Finance Lender Party against which such Finance Lender Party's share of such relevant sum was applied.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Redistribution of payments. (a) 29.1 If, at any time, the proportion which any Finance Party a Bank (a "RECOVERING FINANCE PARTYBANK") has received or recovered (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 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 of the Borrowers for the account of such Recovering Finance Party Bank and one or more the other Finance Parties Bank is greater (the amount 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 Finance Party or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Bank so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the such Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above as if such amount had been received by it from the such Borrower in respect of such relevant payment and shall pay the same to the other Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to 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 sumsentitlements thereto.
(b) 29.2 If any sum (a "RELEVANT SUM") received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by any of the Borrower Borrowers becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 29.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) there shall thereupon fall due from the such Borrower to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to clause paragraph (b)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) If any 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 Lenders and. FEES, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.COSTS AND EXPENSES
Appears in 1 contract
Redistribution of payments. (a) If24.1 Subject to Clause 24.2, if, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYRecovering Bank") has received or recovered (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 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 either Borrower for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount 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 Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the relevant Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above as if such amount had been received by it from the relevant Borrower in respect of such relevant payment and shall pay the same to the other Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) PRO RATA to 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 sumsentitlements thereto.
(b) 24.2 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 Bank 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to defined in clause (aClause 24.1)) , then such Lender Bank shall not be required to share any portion of such excess amount with any Lender Bank 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.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Redistribution of payments. (a) 33.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYBANK") has received or recovered (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 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 of the Borrowers for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount 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 Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the such Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Facility Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above as if such amount had been received by it from the such Borrower in respect of such relevant payment and shall pay the same to the other Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to their respective Funding Percentages. Within two (2entitlements thereto, Provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to Clause 31.3(i)(a) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party such portion of such excess amount as is so attributable 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 sumsnot be required to be shared pursuant hereto.
(b) 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 a Recovering Finance Party Bank in respect of any amount owing to it by any of the Borrower Borrowers becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 33.1 shall, upon request of the Agent, Facility Agent pay to the Facility Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) there shall thereupon fall due from the such Borrower to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to clause paragraph (b)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) If any Lender 33.4 Without prejudice to the preceding provisions of this Clause 33, if the Facility Agent shall commence any action receive from PLC or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with Borrower hereunder funds which are insufficient to satisfy in full the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion obligations of such excess amount with any Lender which has person under the legal right toFinance Documents then due to be discharged, but does not, join the Facility Agent shall allocate the funds so received in or towards discharging the amounts then so due from such action or proceeding (having had notice person pro rata to the amounts of such action or proceeding) or commence obligations and diligently prosecute a separate action or proceeding each party hereto irrevocably authorises and directs the Facility Agent so to enforce its rightsact.
Appears in 1 contract
Sources: Multicurrency Multi Option Facility Agreement (Pearson Merger Co Inc)
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 Finance Party Lender (a an "RECOVERING 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 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)Obligations, then:
(i) : such Recovering Finance Party Overpaid Lender 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 paymentExcess Amount; and
(iii) the Agent shall treat such payment as a payment made to it by the amount received by it from such Recovering Finance Party pursuant to clause (a)(i) Canadian Borrower or the U.S. Borrower, as if such amount had been received by it from the Borrower case may be, in respect of such relevant payment Loans outstanding under the applicable Tranche to the applicable Lenders and shall pay distribute such payment among the same to the other Finance Parties applicable Lenders in accordance with their respective Funding Percentages. Within two (2) Business Days after any Finance Party receives Rateable Portions; as between the Canadian Borrower or recovers any the U.S. Borrower, 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 Borrower to such Lender in respect of such Obligations on the day of the receipt thereof; and the Agent shall give notice to the Canadian Borrower or the U.S. Borrower, as the case may be, of all relevant particulars of the payment otherwise than by payment through the Agent, that Finance Party shall notify to the 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 by a Recovering Finance Party in respect of any amount owing to it the redistribution by the Borrower becomes repayable and is repaid by such Recovering Finance Party, then:
(i) each Finance Party which has received a share 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 Excess Amount to the Canadian Borrower or the U.S. Borrower, each Lender shall forthwith pay its Rateable Portion of clause (a) shall, upon request of the Agent, pay such portion to the Agent for the account of the Recovering Finance Party an amount equal Overpaid Lender. For the purposes of paragraph (b) above and the proviso 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)this Section 11.15, 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 Rateable Portion of such relevant sum was applied.
(c) If any Lender shall commence be calculated with reference to any action or proceeding Loans outstanding under the applicable Tranche in any court to enforce its rights hereunder or under any other Finance Document after consultation with respect of the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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 rightsOverpaid Lender.
Appears in 1 contract
Redistribution of payments. (a) If, at any time, the proportion which any Finance Party (a "RECOVERING FINANCE PARTY"“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"“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 Finance Party and one or more other Finance Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT"“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 ’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"“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 ’s share of such relevant sum was applied.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Sources: Loan Agreement (Yamana Gold Inc)
Redistribution of payments. (a) 28.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTY"“Recovering Bank”) has received or recovered (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 of any payment (a "RELEVANT PAYMENT"“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 of the Obligors for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT"“excess amount”) than the proportion thereof so received or recovered by the Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) 28.1.1 such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) 28.1.2 there shall thereupon (within 3 business days after receipt of a notice from the Agent) fall due from the Borrower such Obligor to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to sub-clause (a)(i)28.1.1 above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance Party's Bank’s portion of such relevant payment; and
(iii) 28.1.3 the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to sub-clause (a)(i) 28.1.1 above 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 Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to their respective Funding Percentages. Within two (2) Business Days after entitlements thereto, Provided that to the extent that any Finance Party receives or recovers any relevant excess amount is attributable to a payment otherwise than by payment through the Agent, that Finance Party to a Bank pursuant to this Clause 28.1 such portion of such excess amount as is so attributable 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 sumsnot be required to be shared pursuant hereto.
(b) 28.2 If any sum (a "RELEVANT SUM"“relevant sum”) received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by any of the Borrower Obligors becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) 28.2.1 each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 28.1 of this Clause 28 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) 28.2.2 there shall thereupon fall due from the Borrower such Obligor to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to sub-clause (b)(i)28.2.1 above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance Party's Bank’s share of such relevant sum was applied.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Redistribution of payments. (a) If, at any time, the proportion which any Senior Finance Party (a "RECOVERING FINANCE PARTYRecovering 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 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 the Borrower 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 Finance Lender Party (a "RECOVERING FINANCE 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 Finance Loan Document (other than any Risk Management Agreement to which it is party) by any Obligor for the account of such Recovering Finance Lender Party and one or more other Finance Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Finance Lender Party or 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 Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Finance 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 Finance Lender Party an amount equal to the amount paid out by such Recovering 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 Finance Lender Party's portion of such relevant payment; and
(iii) the Facility Agent shall treat the amount received by it from such Recovering 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 Finance Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Finance Lender Party receives or recovers any relevant payment otherwise than by payment through the Facility Agent, that Finance 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 Finance Lender Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance Lender Party, then:
(i) each 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 Facility Agent, pay to the Facility Agent for the account of the Recovering 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 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 Finance Lender Party against which such Finance Lender Party's share of such relevant sum was applied.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Sources: Project Term Loan Facility Agreement (Randgold Resources LTD)
Redistribution of payments. (a) 27.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTY“Recovering Bank") has received or recovered (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 of any payment (a "RELEVANT PAYMENT“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 an Obligor for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT“excess amount") than the proportion thereof so received or recovered by the Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so receiving or recovering the smallest proportion thereof (which, for the purposes hereof which 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 Percentagesreceipt), then:
(i) 27.1.1 such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) 27.1.2 there shall thereupon fall due from the Borrower such Obligor to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to sub-clause (a)(i)27.1.1 above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance Party's Bank’s portion of such relevant payment; and
(iii) 27.1.3 the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to sub-clause (a)(i) 27.1.1 above 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 Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to their respective Funding Percentages. Within two (2entitlements 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) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party such portion of such excess amount as is so attributable 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 sumsnot be required to be shared pursuant hereto.
(b) 27.2 If any sum (a "RELEVANT SUM"“relevant sum”) received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by the Borrower an Obligor becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) 27.2.1 each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 27.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) 27.2.2 there shall thereupon fall due from the Borrower such Obligor to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to sub-clause (b)(i)27.2.1 above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance Party's Bank’s share of such relevant sum was applied.
(c) If 27.3 A Bank shall not be obliged to share any Lender shall commence any action or proceeding in any court to enforce its rights hereunder or under amount with any other Finance Document after consultation with the other Lenders and, Bank which it has received or recovered as a result thereof or of taking legal proceedings where such other Bank had an opportunity to participate in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall those legal proceedings but did not be required to share any portion of such excess amount with any Lender which has the do so and did not take separate 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 rightsproceedings.
Appears in 1 contract
Sources: Multicurrency Revolving Credit and Sterling Acceptance Facility Agreement (Mbna Corp)
Redistribution of payments. (a) IfIf any Lender shall exercise any right of counter-claim, at any time, the proportion which any Finance Party (a "RECOVERING 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 Finance Party and one or more other 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 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), thenproportionately between:
(i) such Recovering Finance Party shall pay to amounts comprised in the 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 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 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 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 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 Finance Parties in accordance with their respective Funding Percentages. Within two (2) Business Days after any Finance Party receives documentary or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party shall notify the 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 Finance Party any other Lender in respect of any the aggregate amount owing of the Loan Obligations due to it by such other Lender (having regard to the Borrower becomes repayable and is repaid by respective Rateable Shares of the Lenders), the Lender receiving such Recovering Finance Partyproportionately 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, thenhowever, that:
(i) each 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 Agent, pay purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the 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 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 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 Finance Party against which such Finance Party's share of such relevant sum was appliedin full.
(c) If any 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such 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 Lender which has particulars to 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 rightsother Lenders.
Appears in 1 contract
Sources: Credit Agreement (Kinder Morgan Inc)
Redistribution of payments. (a) 25.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYRecovering Bank") has received or recovered (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 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 either of the Obligors for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNTexcess amount") than the proportion thereof so received or recovered by the Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower such Obligor to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above 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 Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to their respective Funding Percentages. Within two (2entitlements 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) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party such portion of such excess amount as is so attributable 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 sumsnot be required to be shared pursuant hereto.
(b) 25.2 If any sum (a "RELEVANT SUMrelevant sum") received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by either the Borrower Obligors becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 25.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party 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 sumsum to such Obligor; and
(ii) there shall thereupon fall due from the Borrower such Obligor to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to clause paragraph (b)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) If 25.3 A Bank shall not be obliged to share any Lender shall commence any action amount pursuant to clause 25.1 if it has received or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, recovered such amount as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount taking legal proceedings with any Lender other Bank which has the had an opportunity to participate in those legal right toproceedings but did not do so and did not separately take equivalent legal proceedings. FEES, 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.COSTS AND EXPENSES
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Incentive Ab)
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 Finance Party Lender (a "RECOVERING FINANCE PARTYRecovering Lender") 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 Finance Party and one or more other 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 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:
(ia) such Recovering Finance Party Lender shall pay to the 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 Finance Party Lender an amount equal to the amount paid out by such the Recovering 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 Finance PartyLender's portion of such relevant paymentthe Relevant Payment; and
(iiic) the Facility Agent shall treat the amount received by it from such the Recovering 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 Finance Parties in accordance with persons entitled to the Relevant Payment (including the Recovering Lender) pro rata to 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 sumsentitlements thereto.
(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 commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Redistribution of payments. (a) 28.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYRecovering Bank") has received or recovered (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 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 the Borrower for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNTexcess amount") than the proportion thereof so received or recovered by the Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above 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 persons entitled thereto (including such Recovering Bank) pro rata to 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 sumsentitlements thereto.
(b) 28.2 If any sum (a "RELEVANT SUMrelevant sum") received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 28.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to clause paragraph (b)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) 28.3 If any Lender Bank 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to defined in clause (aClause 28.1)) , then such Lender Bank shall not be required to share any portion of such excess amount with any Lender Bank 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.rights in another court. Part 10
Appears in 1 contract
Sources: Senior Subordinated Facility Agreement (Ifco Systems Nv)
Redistribution of payments. (a) If13.22.1 If any Lender shall exercise any right of counter-claim, at any time, the proportion which any Finance Party (a "RECOVERING 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 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 any other Lender in respect of the Finance Party or 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 Lenders in accordance with their respective Funding Percentages), then:
(i) such Recovering Finance Party shall pay having regard to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from respective Rateable Shares of the Borrower to the Recovering Finance Party an amount equal to the amount paid out by such Recovering 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 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 Agent recovery, but without interest. Such Lender 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 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 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 sumsLenders.
(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 commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be required to share any portion of such excess amount with any 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.
Appears in 1 contract
Redistribution of payments. (a) IfIf 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, at combination or amalgamation of accounts or otherwise, including under clause 6(f) or clause 19.7) or recovers any time, the proportion which any Finance amount from a Transaction Party (whether under the Mezzanine Finance Documents, or otherwise) as a "RECOVERING FINANCE PARTY"consequence of exercising any Encumbrance or right of set-off or combination or amalgamation of accounts in respect of an account maintained with that Financier by a Transaction Party:
(1) the Financier must promptly advise the Mezzanine Agent that it has received or recovered the amount;
(whether voluntary, involuntary, 2) the Financier must within 3 Business Days after demand by application of set off or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") the Mezzanine Agent pay to the Mezzanine Agent the amount determined by the Mezzanine Agent to be made under this Agreement or under any other Finance Document equal to the amount (other than any Risk Management Agreement to which it is partyexcess amount) by any Obligor for the account of such Recovering Finance Party and one or more other Finance Parties is greater (which the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof 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 clause 8.9, and to that extent, the liability of the Transaction Party to the Financier will not be reduced by the Finance Party recovery or Finance Parties entitled payment, other than to participate in the extent of any distribution received by the party under clause 8.11(a)(3);
(3) the Mezzanine Agent must treat the payment Obligation of the excess amount as if it were a payment by the Transaction Party to which such payment relates the Mezzanine Agent on account of all the Financiers and which are receiving or recovering promptly distribute the smallest proportion thereof excess amount to the Financiers in accordance with clause 8.9; and
(which4) as between each Transaction Party and the Mezzanine Finance Parties, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are excess amount is to be distributed among treated as not having been paid to the Lenders Financier, but as having been paid to all the Financiers 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 sumsentitlements.
(b) If any sum (a "RELEVANT SUM"an amount to which clause 8.11(a) applies is subsequently required to be repaid by the Financier who originally received or recovered by it to a Recovering Finance Party in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Finance Transaction Party, then:
(i) each Mezzanine Finance Party which has received a share any part of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Agent, pay it must repay that part to the Agent for Financier who originally received or recovered it, and the account of the Recovering Finance Party an amount equal to its share of the relevant sum; and
(iiadjustments under clause 8.11(a)(4) 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 appliedwill be reversed.
(c) If any Lender Immediately upon a Financier making or becoming liable to make a payment under clause 8.11(a)(2), each Transaction Party shall commence any action or proceeding in any court indemnify the Financier against the payment to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, as a result thereof or in connection therewith, shall receive any excess amount extent that (as referred to in despite clause (a8.11(a)(2)) then such Lender shall not be required to share any portion of such excess amount with any Lender which its liability has been discharged by the legal right to, but does not, join in such action recovery or proceeding (having had notice of such action or proceeding) or commence and diligently prosecute a separate action or proceeding to enforce its rightspayment.
Appears in 1 contract
Sources: Mezzanine Facility Agreement (Worldwide Restaurant Concepts Inc)
Redistribution of payments. (a) If24.1 Subject to Clause 24.2, if, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYBANK") has received or recovered (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 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 the Borrower for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount 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 Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above 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 persons entitled thereto (including such Recovering Bank) PRO RATA to 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 sumsentitlements thereto.
(b) 24.2 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 Bank 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 Lenders and, as a result thereof or in connection therewith, shall receive any excess amount (as referred to defined in clause (aClause 24.1)) , then such Lender Bank shall not be required to share any portion of such excess amount with any Lender Bank 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.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Redistribution of payments. (a) IfSubject to Clause 19.3, if, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYBANK") has received or recovered (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 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 the Borrower for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount 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 Finance Party such Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so 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)thereof, then:
(i) such Recovering Finance Party Bank shall pay to the Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to clause paragraph (a)(i)i) above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) the Facility Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to clause paragraph (a)(ii) above 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 persons entitled thereto (including such Recovering Bank) pro rata to 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 Agententitlements thereto, Provided 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 commence any action or proceeding in any court to enforce its rights hereunder or under any other Finance Document after consultation with the other Lenders and, as a result thereof or in connection therewith, shall receive extent that any excess amount (is attributable to a payment to a Bank pursuant to Clause 17.3(i)(a) such portion of such excess amount as referred to in clause (a)) then such Lender is so attributable shall not be required to share any portion of such excess amount with any 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 rightsbe shared pursuant hereto.
Appears in 1 contract
Sources: Facility Agreement (Royal Ahold)
Redistribution of payments. (a) 26.1 If, at any time, the proportion which any Finance Party Bank (a "RECOVERING FINANCE PARTYRecovering Bank") has received or recovered (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 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 an Obligor for the account of such Recovering Finance Party Bank and one or more other Finance Parties Banks is greater (the amount portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNTexcess amount") than the proportion thereof so received or recovered by the Finance Party Bank or Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are Banks so receiving or recovering the smallest proportion thereof (which, for the purposes hereof which 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 Percentagesreceipt), then:
(i) 26.1.1 such Recovering Finance Party Bank shall pay to the Agent an amount equal to such excess amount;
(ii) 26.1.2 there shall thereupon fall due from the Borrower such Obligor to the such Recovering Finance Party Bank an amount equal to the amount paid out by such Recovering Finance Party Bank pursuant to sub-clause (a)(i)26.1.1 above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were an unpaid part of such Recovering Finance PartyBank's portion of such relevant payment; and
(iii) 26.1.3 the Agent shall treat the amount received by it from such Recovering Finance Party Bank pursuant to sub-clause (a)(i) 26.1.1 above 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 Finance Parties in accordance with persons entitled thereto (including such Recovering Bank) pro rata to their respective Funding Percentages. Within two (2entitlements 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) Business Days after any Finance Party receives or recovers any relevant payment otherwise than by payment through the Agent, that Finance Party such portion of such excess amount as is so attributable 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 sumsnot be required to be shared pursuant hereto.
(b) 26.2 If any sum (a "RELEVANT SUMrelevant sum") received or recovered by a Recovering Finance Party Bank in respect of any amount owing to it by the Borrower an Obligor becomes repayable and is repaid by such Recovering Finance PartyBank, then:
(i) 26.2.1 each Finance Party Bank which has received a share of such relevant sum by reason of the implementation of clause (a) Clause 26.1 shall, upon request of the Agent, pay to the Agent for the account of the such Recovering Finance Party Bank an amount equal to its share of the such relevant sum; and
(ii) 26.2.2 there shall thereupon fall due from the Borrower such Obligor to each such Finance Party Bank an amount equal to the amount paid out by it pursuant to sub-clause (b)(i)26.2.1 above, the amount so due being treatedbeing, for the purposes hereof, treated as if it were the sum payable to such Finance Party Bank against which such Finance PartyBank's share of such relevant sum was applied.
(c) If 26.3 A Bank shall not be obliged to share any Lender shall commence any action or proceeding in any court to enforce its rights hereunder or under amount with any other Finance Document after consultation with the other Lenders and, Bank which it has received or recovered as a result thereof or of taking legal proceedings where such other Bank had an opportunity to participate in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall those legal proceedings but did not be required to share any portion of such excess amount with any Lender which has the do so and did not take separate 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 rightsproceedings.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Mbna Corp)