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 all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full; and (b) 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or insolvency legislation or is otherwise required to be returned by such purchasing Lender, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such amount returned, together with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 relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full.
Appears in 1 contract
Sources: Credit Agreement (MDC Partners Inc)
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for payments to a Lender which were received by the Facility Agent for the account of such Lender in accordance with a Finance Document and subject to the terms of the Intercreditor and Subordination Agreement (if any), if, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if any Lender (a "Recovering Lender") shall receive or recover (whether by payment, through the exercise of any a right of set-off or otherwise combination of accounts or otherwise) all or part of any amount payable to a Lender (save for a "Relevant Payment'') under that Finance Document by an Obligor in a proportion which, in relation to 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 amounts received by any one or more other Lender Lenders, represents more than its proportional Participation in respect of the aggregate such amount of the Loan Obligations due to payable (such other Lender (having regard to the respective Rateable Shares of the Lendersexcess being called in this Agreement an "Excess Amount"), 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, thatthen:
(a) such Recovering Lender shall pay to the Facility Agent an amount equal to the Excess Amount;
(b) there shall thereupon become due from such Obligor to the Recovering Lender an amount equal to the amount paid by the Recovering Lender pursuant to paragraph (a) of this Clause 23.1, the amount so due being, for the purposes hereof, treated as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and Recovering Lender's portion of 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 interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullRelevant Payment; and
(bc) if all or part of such proportionately greater payment the Facility Agent shall treat the amount received by it from the Recovering Lender pursuant to paragraph (a) of this Clause 23.1 above as if such purchasing Lender is found to have amount had been a transfer received by the Facility Agent from an Obligor in fraud respect of creditors or a preferential payment under any applicable bankruptcy or insolvency legislation or is otherwise required to be returned by Relevant Payment and shall distribute 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 amount to the extent of such amount returned, together with interest thereon at persons entitled to the relevant interbank rate calculated and payable from Relevant Payment (including the Business Day following the day such return is requested until it is paid in fullRecovering Lender) pro rata to their respective entitlements thereto.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts (a) If, at any time, the proportion which any Senior Finance Party (a "Recovering Senior Finance Party") has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a "relevant payment") to be Sharedmade under this Agreement or under any other Finance Document (other than any Risk Management Agreement to which it is party) by any Obligor for the account of such Recovering Senior Finance Party and one or more other Senior Finance Parties is greater (the amount of such excess being herein called an "excess amount") than the proportion thereof received or recovered by the Senior Finance Party or Senior Finance Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that all relevant payments are to be distributed among the Senior Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Senior Finance Party shall pay to the Principal Facilities Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Senior Finance Party an amount equal to the amount paid out by such Recovering Senior Finance Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof, as if it were an unpaid part of such Recovering Senior Finance Party's portion of such relevant payment; and
(iii) the Principal Facilities Agent shall treat the amount received by it from such Recovering Senior Finance Party pursuant to clause (a)(i) as if such amount had been received by it from the Borrower in respect of such relevant payment and shall pay the same to the other Senior Finance Parties in accordance with their respective relevant Funding Percentages. Except Within two (2) Business Days after any Senior Finance Party receives or recovers any relevant payment otherwise than by payment through the Principal Facilities Agent, that Senior Finance Party shall notify the Principal Facilities Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(b) If any sum (a "relevant sum") received or recovered by a Recovering Senior Finance Party in respect of any amount owing to it by any Obligor becomes repayable and is repaid by such Recovering Senior Finance Party, then:
(i) each Senior Finance Party which has received a share of such relevant sum by reason of the implementation of clause (a) shall, upon request of the Principal Facilities Agent, pay to the Principal Facilities Agent for the account of the Recovering Senior Finance Party an amount equal to its share of the relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Senior Finance Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if it were the sum payable to such Senior Finance Party against which such Senior Finance Party's share of such relevant sum was applied.
(c) If any payment that is 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 be shared pursuant 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 Subsection 15.22.2enforce its rights.
(d) Notwithstanding anything to the contrary contained in this Agreement or any other Finance Document, if a Lender, through the exercise of no Covered Senior Lender shall have any right of set-off or otherwise (save for obligation to share any payment made to it from the Agent in accordance with the provisions hereof) receives payment of a portion of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect provider of the aggregate amount of the Loan Obligations due to such other Lender Political Risk Insurance with any Uncovered Lender.
(having regard e) Notwithstanding anything to the respective Rateable Shares of the Lenders)contrary contained in this Agreement or any other Finance Document, the Lender receiving such proportionately greater payment neither IFC nor Export Development Canada (in their capacities as a Tranche A Senior Lender) shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due have any obligation 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 all or part of such proportionately greater share any payment received by such purchasing Lender shall be recovered from a Restricted Group Member by or for the Selling Lender account of IFC or Lenders, such purchase shall be rescinded Export Development Canada in freely convertible 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 interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full; andtransferable currencies ("Convertible Currencies") under circumstances where
(bi) if all there is an unavailability or part 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 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 foreign exchange restrictions or is otherwise required afforded preferential treatment by foreign currency being made available for obligations owed to be returned by such purchasing Lender, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such amount returned, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullConvertible Currencies.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for If:
11.10.1 any payment that is required to be shared particular sum (a “Due Sum”) becomes payable pursuant hereto or pursuant to Subsection 15.22.2, if 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, through the exercise of any right ”) receives or recovers by way of set-off off, counterclaim, combination of accounts, legal proceedings or otherwise other action all or any part of such Due Sum which is owed to such Excess Amount Lender; and
11.10.4 the proportion which such Excess Amount Lender has so received or recovered of that share of the Due Sum actually owed to such Excess Amount Lender exceeds the proportion so received or recovered by any other Lender or Hedging Bank which is also owed a share of such Due Sum (save for any payment made the amount of the excess an “Excess Amount”), then:
(a) such Excess Amount Lender shall pay to it from the Facility Agent an amount equal to such Excess Amount; and
(b) an amount equal to the Excess Amount shall be deemed not to have been paid by the payer to or received or recovered by the Excess Amount Lender but paid to the Facility Agent by the relevant Borrower and shall be distributed by the Facility 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 this Agreement as if originally 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 all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full; and
(b) 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 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 relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullFacility Agent.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Fly Leasing LTD)
Redistribution of payments. 15.22.1 Disproportionate Receipts (a) If, at any time, the proportion which any Lender Party (a "RECOVERING LENDER PARTY") has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be Shared. Except made under this Agreement or under any other Loan Document (other than any Risk Management Agreement to which it is party) by any Obligor for any the account of such Recovering Lender Party and one or more other Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Lender Party or Lender Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that is required all relevant payments are to be shared distributed among the Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Lender Party shall pay to the Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Lender Party an amount equal to the amount paid out by such Recovering Lender Party pursuant to Subsection 15.22.2clause (a)(i), the amount so due being treated, for the purposes hereof, as if a Lender, through it were an unpaid part of such Recovering Lender Party's portion of such relevant payment; and
(iii) the exercise of any right of set-off or otherwise Facility Agent shall treat the amount received by it from such Recovering Lender Party pursuant to clause (save for any payment made to a)(i) as if such amount had been received by 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 Borrower in respect of such relevant payment and shall pay 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 same to the other Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Lender Party receives or Lenders recovers any relevant payment otherwise than by payment through the Facility Agent, that Lender Party shall notify the Facility Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(the b) If any sum (a "Selling Lender or LendersRELEVANT SUM") so that received or recovered by a Recovering Lender Party in respect of any amount owing to it by the respective receipts shall be pro rata according to their respective Rateable Shares; providedBorrower becomes repayable and is repaid by such Recovering Lender Party, however, thatthen:
(i) each Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) if all or part shall, upon request of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or LendersFacility Agent, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders pay to the extent Facility Agent for the account of such recovery, together with interest thereon at the Recovering Lender Party an amount equal to its share of the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum; and
(bii) there shall thereupon fall due from the Borrower to each such Lender Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if all or part it were the sum payable to such Lender Party against which such Lender Party's share of such proportionately greater payment received by such purchasing relevant sum was applied.
(c) If any Lender is found shall commence any action or proceeding in any court to have been a transfer in fraud of creditors enforce its rights hereunder or a preferential payment under any applicable bankruptcy other Loan Document after consultation with the other Lenders and, as a result thereof or insolvency legislation or is otherwise in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be 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 share any portion of such excess amount returnedwith any Lender which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding (having had notice of such action or proceeding) or commence and payable from the Business Day following the day such return is requested until it is paid in fulldiligently 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. 15.22.1 Disproportionate Receipts to be Shared. Except for 28.1 If, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if the proportion which any Bank (a Lender“Recovering Bank”) has received or recovered (whether by payment, through the exercise of any a right of set-off or otherwise (save for combination of accounts or otherwise) in respect of its portion of any payment (a “relevant payment”) to be made to it from under this Agreement by any of the Agent in accordance with Obligors for account of such Recovering Bank and one or more other Banks is greater (the provisions hereof) receives payment of a portion of the Loan Obligations due such receipt or recovery giving rise to it which is greater such excess proportion being herein called an “excess amount”) than the proportion thereof so received or recovered by the Bank or Banks so receiving or recovering the smallest proportion thereof, then:
28.1.1 such Recovering Bank shall pay to the Agent an amount equal to such excess amount;
28.1.2 there shall (within 3 business days after receipt of a notice from the Agent) fall due from such Obligor to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to sub-clause 28.1.1 above, the amount so due being, for the purposes hereof, treated as if it were an unpaid part of such Recovering Bank’s portion of such relevant payment; and
28.1.3 the Agent shall treat the amount received by any other Lender it from such Recovering Bank pursuant to sub-clause 28.1.1 above as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the aggregate amount of the Loan Obligations due to such other Lender (having regard same to the respective Rateable Shares of the Lenders), the Lender receiving persons entitled thereto (including such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such paymentRecovering Bank) 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; providedentitlements thereto, however, that:
(a) if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders Provided that to the extent that any excess amount is attributable to a payment to a Bank pursuant to this Clause 28.1 such portion of such recoveryexcess amount as is so attributable shall not be required to be shared pursuant hereto.
28.2 If any sum (a “relevant sum”) received or recovered by a Recovering Bank in respect of any amount owing to it by any of the Obligors becomes repayable and is repaid by such Recovering Bank, together with interest thereon at then:
28.2.1 each Bank which has received a share of such relevant sum by reason of the implementation of Clause 28.1 of this Clause 28 shall, upon request of the Agent, pay to the Agent for account of such Recovering Bank an amount equal to its share of such relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum; and
(b) 28.2.2 there shall thereupon fall due from such Obligor to each such Bank an amount equal to the amount paid out by it pursuant to sub-clause 28.2.1 above, the amount so due being, for the purposes hereof, treated as if all or part it were the sum payable to such Bank against which such Bank’s share 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 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 relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum was applied.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for 29.1 If, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if the proportion which a LenderBank (a "RECOVERING BANK") has received or recovered (whether by payment, through the exercise of any a right of set-off or otherwise (save for combination of accounts or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made to it from under this Agreement by any of the Agent in accordance with Borrowers for account of such Recovering Bank and the provisions hereof) receives payment of a other Bank is greater (the portion of the Loan Obligations due such receipt or recovery giving rise to it which is greater such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by any other Lender in respect of the aggregate amount of Bank so receiving or recovering the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)smallest proportion thereof, 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, thatthen:
(ai) such Recovering Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from such Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent Recovering Bank's portion of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullpayment; and
(biii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if all or part such amount had been received by it from such Borrower in respect of such proportionately greater relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto.
29.2 If any sum (a "RELEVANT SUM") received or recovered by a Recovering Bank in respect of any amount owing to it by any of the Borrowers becomes repayable and is repaid by such purchasing Lender is found to have been Recovering Bank, then:
(i) each Bank which has received a transfer in fraud share of creditors or a preferential payment under any applicable bankruptcy or insolvency legislation or is otherwise required to be returned such relevant sum by such purchasing Lenderreason of the implementation of Clause 29.1 shall, such purchase shall be rescinded and upon request of the purchase price paid for such participation shall be returned by such Selling Lender or Lenders Agent, pay to the extent Agent for the account of such Recovering Bank an amount returnedequal to its share of such relevant sum; and
(ii) there shall thereupon fall due from such Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, together with interest thereon at the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full.sum was applied. FEES, COSTS AND EXPENSES
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts 24.1 Subject to be Shared. Except for Clause 24.2, if, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if the proportion which any Bank (a Lender"Recovering Bank") has received or recovered (whether by payment, through the exercise of any a right of set-off or otherwise (save for combination of accounts or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made to it from under this Agreement by either Borrower for account of such Recovering Bank and one or more other Banks is greater (the Agent in accordance with the provisions hereof) receives payment of a portion of the Loan Obligations due such receipt or recovery giving rise to it which is greater such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by any other Lender in respect of the aggregate amount of Bank or Banks so receiving or recovering the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)smallest proportion thereof, 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, thatthen:
(ai) such Recovering Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the relevant Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent Recovering Bank's portion of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullpayment; and
(biii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if all or part such amount had been received by it from the relevant Borrower in respect of such proportionately greater relevant payment received by and shall pay the same to the persons entitled thereto (including such purchasing Lender is found Recovering Bank) PRO RATA to have been their respective entitlements thereto.
24.2 If any Bank shall commence any action or proceeding in any court to enforce its rights hereunder and, as a transfer result thereof or in fraud of creditors or a preferential payment under connection therewith, shall receive any applicable bankruptcy or insolvency legislation or is otherwise excess amount (as defined in Clause 24.1), then such Bank shall not be 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 share any portion of such excess amount returnedwith any Bank which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding or commence and payable from the Business Day following the day such return is requested until it is paid diligently prosecute a separate action or proceeding to enforce its rights in fullanother court.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for 33.1 If, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if the proportion which any Bank (a Lender"RECOVERING BANK") has received or recovered (whether by payment, through the exercise of any a right of set-off or otherwise (save for combination of accounts or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made to it from under this Agreement by any of the Agent in accordance with Borrowers for account of such Recovering Bank and one or more other Banks is greater (the provisions hereof) receives payment of a portion of the Loan Obligations due such receipt or recovery giving rise to it which is greater such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by any other Lender in respect of the aggregate amount of Bank or Banks so receiving or recovering the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)smallest proportion thereof, 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, thatthen:
(ai) such Recovering Bank shall pay to the Facility Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from such Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent Recovering Bank's portion of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullpayment; and
(biii) the Facility Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if all or part such amount had been received by it from such Borrower in respect of such proportionately greater relevant payment received by and shall pay the same to the persons entitled thereto (including such purchasing Lender Recovering Bank) pro rata to their respective entitlements thereto, Provided that to the extent that any excess amount is found attributable to have been a transfer in fraud payment to a Bank pursuant to Clause 31.3(i)(a) such portion of creditors or a preferential payment under any applicable bankruptcy or insolvency legislation or such excess amount as is otherwise so attributable shall not be required to be returned shared pursuant hereto.
33.2 Nothing in this Clause 33 shall confer on any Bank a security interest over any property of any Borrower and the obligations and liabilities of each Borrower arising under this Clause 33 shall have effect accordingly.
33.3 If any sum (a "RELEVANT SUM") received or recovered by a Recovering Bank in respect of any amount owing to it by any of the Borrowers becomes repayable and is repaid by such purchasing LenderRecovering Bank, then:
(i) each Bank which has received a share of such purchase shall be rescinded and relevant sum by reason of the purchase price paid for such participation shall be returned by such Selling Lender or Lenders implementation of Clause 33.1 shall, upon request of the Facility Agent pay to the extent Facility Agent for account of such Recovering Bank an amount returnedequal to its share of such relevant sum; and
(ii) there shall thereupon fall due from such Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, together with interest thereon at the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant interbank rate calculated sum was applied.
33.4 Without prejudice to the preceding provisions of this Clause 33, if the Facility Agent shall receive from PLC or any other Borrower hereunder funds which are insufficient to satisfy in full the obligations of such person under the Finance Documents then due to be discharged, the Facility Agent shall allocate the funds so received in or towards discharging the amounts then so due from such person pro rata to the amounts of such obligations and payable from each party hereto irrevocably authorises and directs the Business Day following the day such return is requested until it is paid in fullFacility Agent so to act.
Appears in 1 contract
Sources: Multicurrency Multi Option Facility Agreement (Pearson Merger Co Inc)
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for 27.1 If, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if the proportion which a LenderBank (a "RECOVERING BANK") has received or recovered (whether by payment, through the exercise of any a right of set-off or otherwise (save for combination of accounts or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be made under this Agreement by the Borrower for account of such Recovering Bank and the other Bank is greater (the portion of such receipt or recovery giving rise to such excess proportion being herein called an "EXCESS AMOUNT") than the proportion thereof so received or recovered by the Bank so receiving or recovering the smallest proportion thereof, then:
(i) such Recovering Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated
(iii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if such amount had been received by 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 Borrower in respect of such relevant payment and shall pay the aggregate amount of the Loan Obligations due to such other Lender (having regard same to the respective Rateable Shares of the Lenders), the Lender receiving persons entitled thereto (including such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such paymentRecovering Bank) 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; providedentitlements thereto.
27.2 If any sum (a "RELEVANT SUM") received or recovered by a Recovering Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such Recovering Bank, however, thatthen:
(ai) if all or part each Bank which has received a share of such proportionately greater payment received relevant sum by such purchasing Lender shall be recovered from a Restricted Group Member by reason of the Selling Lender or Lendersimplementation of Clause 27.1 shall, such purchase shall be rescinded and upon request of the purchase price paid for such participation shall be returned by such Selling Lender or Lenders Agent, pay to the extent Agent for the account of such recovery, together with interest thereon at the Recovering Bank an amount equal to its share of such relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum; and
(bii) there shall thereupon fall due from the Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if all or part it were the sum payable to such Bank against which such Bank's share 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 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 relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum was applied.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts (a) If, at any time, the proportion which any Lender Party (a "RECOVERING LENDER Party") has received or recovered (whether voluntary, involuntary, by application of set off, or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be Shared. Except made under this Agreement or under any other Loan Document (other than any Required Hedging Agreement to which it is party) by any Obligor for any the account of such Recovering Lender Party and one or more other Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Lender Party or Lender Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that is required all relevant payments are to be shared pursuant to Subsection 15.22.2, if a Lender, through distributed among the exercise of any right of set-off or otherwise (save for any payment made to it from the Agent Lenders in accordance with their respective Percentages), then:
(i) such Recovering Lender Party shall pay to the provisions Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from such Obligor to the Recovering Lender Party an amount equal to the amount paid out by such Recovering Lender Party pursuant to clause (a)(i), the amount so due being treated, for the purposes hereof) receives payment , as if it were an unpaid part of a such Recovering Lender Party's portion of such relevant payment; and
(iii) the Loan Obligations due to it which is greater than Agent shall treat the proportion amount received by any other it from such Recovering Lender Party pursuant to clause (a)(i) as if such amount had been received by it from such Obligor in respect of such relevant payment and shall pay the 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 same to the other Lender Parties in accordance with their respective Percentages. Within two (2) Business Days after any Lender Party receives or Lenders recovers any relevant payment otherwise than by payment through the Agent, that Lender Party shall notify the Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums. Furthermore, no Lender Party shall be obliged to share any amount which it has received or recovered as a result of taking legal proceedings with any other Lender Party which had the opportunity to participate in those legal proceedings but did not do so and did not take separate legal proceedings to recover the relevant payments.
(the b) If any sum (a "Selling Lender or LendersRELEVANT SUM") so that the respective receipts shall be pro rata according received or recovered by a Recovering Lender Party in respect of any amount owing to their respective Rateable Shares; providedit by any Obligor becomes repayable and is repaid by such Recovering Lender Party, however, thatthen:
(i) each Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) if all or part shall, upon request of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or LendersAgent, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders pay to the extent Agent for the account of such recovery, together with interest thereon at the Recovering Lender Party an amount equal to its share of the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum; and
(bii) there shall thereupon fall due from the relevant Obligor to each such Lender Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if all or part it were the sum payable to such Lender Party against which such Lender Party's share of such proportionately greater payment received by relevant sum was applied.
(c) If any Lender shall commence any action or proceeding in any court to enforce its rights hereunder 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 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 shall not be 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 share any portion of such excess amount returnedwith any Lender which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding (having had notice of such action or proceeding) or commence and payable from the Business Day following the day such return is requested until it is paid diligently prosecute a separate action or proceeding to enforce its rights in fullanother court.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts 13.22.1. If any Lender shall exercise any right of counter-claim, set-off or bankers' lien or similar right with respect to the property of a Gerdau Canada Group Member or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Gerdau Canada Group Member, it shall apportion the amount thereof proportionately between:
13.22.1.1. amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be Sharedapplied in accordance with this Agreement; and
13.22.1.2. Except amounts otherwise owed to it by such Gerdau Canada Group Member; provided that any cash collateral account funded by way of advances from a Gerdau Canada Group Member as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Gerdau Canada Group Member may be applied by such Lender to such amounts owed by such Gerdau Canada Group Member to such Lender in respect of any payment that is required to be shared pursuant to Subsection 15.22.2, if such documentary or standby credit or letter of guarantee without apportionment.
13.22.2. If a LenderLender shall, through the exercise of any right a right, or the receipt of set-off a secured claim described above 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) that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted the Gerdau Canada Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid but without interest. Such Lender shall exercise its rights in full; and
(b) if all or part respect of such proportionately greater payment received 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 such purchasing Lender is found Subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof 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 be rescinded the Agent and the purchase price paid for Agent shall promptly provide copies of such participation shall be returned by such Selling Lender or Lenders particulars to the extent of such amount returned, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullother Lenders.
Appears in 1 contract
Sources: Loan Agreement (Gerdau Usa Inc)
Redistribution of payments. 15.22.1 Disproportionate Receipts (a) If any Lender shall exercise any right of counter-claim, set-off or bankers’ lien or similar right with respect to be Shared. Except the property of the Borrower or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for any payment that which is required a debt owed by it to be shared pursuant the Borrower, it shall apportion the amount thereof proportionately between:
(i) amounts comprised in the Loan Obligations owing to Subsection 15.22.2, if a such Lender, which amounts shall be applied in accordance with this Agreement; and
(ii) amounts otherwise owed to it by the Borrower; provided that any cash collateral account funded by way of advances from the Borrower as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of the Borrower may be applied by such Lender to such amounts owed by the Borrower to such Lender in respect of any such documentary or standby credit or letter of guarantee without apportionment.
(b) If a Lender through the exercise of any a right or the receipt of set-off a secured claim described above 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:
(ai) if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member the Borrower by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, together with interest thereon at the relevant prevailing rate applicable to interbank rate deposit balances calculated and payable from the Business Day following the day such return is requested until it is paid in full; and
(bii) 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 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 relevant prevailing rate applicable to interbank rate deposit balances calculated and payable from the Business Day following the day such return is requested until it is paid in full.
(c) If any Lender receives or recovers payment of any amount it is required to share 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 particulars to the other Lenders.
Appears in 1 contract
Sources: Credit Agreement (Kinder Morgan Inc)
Redistribution of payments. 15.22.1 Disproportionate Receipts to be Shared. Except for (a) If a Financier receives or recovers an amount from a Transaction Party under the Mezzanine Finance Documents other than in accordance with clause 8.9 (whether by way of voluntary or involuntary payment or by way of set-off, combination or amalgamation of accounts or otherwise, including under clause 6(f) or clause 19.7) or recovers any payment that is required to be shared pursuant to Subsection 15.22.2amount from a Transaction Party (whether under the Mezzanine Finance Documents, if or otherwise) as a Lender, through the exercise consequence of exercising any Encumbrance or right of set-off or otherwise combination or amalgamation of accounts in respect of an account maintained with that Financier by a Transaction Party:
(save for any payment made 1) the Financier must promptly advise the Mezzanine Agent that it has received or recovered the amount;
(2) the Financier must within 3 Business Days after demand by the Mezzanine Agent pay to it from the Mezzanine Agent the amount determined by the Mezzanine Agent to be equal to the amount (excess amount) by which the amount received or recovered exceeds the amount the Financier would have received if the amount had been paid to the Mezzanine Agent and distributed in accordance with clause 8.9, and to that extent, the provisions hereof) receives payment of a portion liability of the Loan Obligations due to it which is greater than the proportion received by any other Lender in respect of the aggregate amount of the Loan Obligations due to such other Lender (having regard Transaction Party to the respective Rateable Shares of the Lenders), the Lender receiving such proportionately greater payment shall purchase a participation (which shall Financier will not be done simultaneously with receipt of such payment) in that portion of the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their respective Rateable Shares; provided, however, that:
(a) if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member reduced by the Selling Lender recovery or Lenderspayment, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders other than to the extent of such recovery, together any distribution received by the party under clause 8.11(a)(3);
(3) the Mezzanine Agent must treat the payment of the excess amount as if it were a payment by the Transaction Party to the Mezzanine Agent on account of all the Financiers and promptly distribute the excess amount to the Financiers in accordance with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullclause 8.9; and
(4) as between each Transaction Party and the Mezzanine Finance Parties, the excess amount is to be treated as not having been paid to the Financier, but as having been paid to all the Financiers in accordance with their respective entitlements.
(b) if all or part of such proportionately greater payment received by such purchasing Lender If an amount to which clause 8.11(a) applies 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 subsequently required to be returned repaid by such purchasing Lenderthe Financier who originally received or recovered it to a Transaction Party, such purchase shall be rescinded each Mezzanine Finance Party which has received any part of it must repay that part to the Financier who originally received or recovered it, and the purchase price paid for such participation adjustments under clause 8.11(a)(4) will be reversed.
(c) Immediately upon a Financier making or becoming liable to make a payment under clause 8.11(a)(2), each Transaction Party shall be returned by such Selling Lender or Lenders indemnify the Financier against the payment to the extent of such amount returned, together with interest thereon at that (despite clause 8.11(a)(2)) its liability has been discharged by the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullrecovery or payment.
Appears in 1 contract
Sources: Mezzanine Facility Agreement (Worldwide Restaurant Concepts Inc)
Redistribution of payments. 15.22.1 Disproportionate Receipts If at any time prior to be Shared. Except for any payment the Lenders' declaration that is required to be shared all Obligations are due and payable pursuant to Subsection 15.22.2Section 10.02, if any Lender (an "Overpaid 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 by means of a Lendervoluntary or involuntary payment by such Borrower, through the exercise of any a right of set-off or otherwise (save for any 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 the Obligations, then: such Overpaid Lender shall pay to the Agent an amount equal to the Excess Amount; the Agent shall treat such payment as a payment made to it by the Canadian Borrower or the U.S. Borrower, as the case may be, in respect of Loans outstanding under the applicable Tranche to the applicable Lenders and shall distribute such payment among the applicable Lenders in accordance with their respective Rateable Portions; as between the Canadian Borrower or 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 in accordance with the provisions hereof) receives payment of a portion of the Loan Obligations due shall be treated as having been paid by such Borrower to it which is greater than the proportion received by any other such Lender in respect of such Obligations on the aggregate amount day of the Loan Obligations due to such other Lender (having regard receipt thereof; and the Agent shall give notice to the respective Rateable Shares Canadian Borrower or the U.S. Borrower, as the case may be, of all relevant particulars of the Lenders), payment to the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt Agent of the Excess Amount and the redistribution by the Agent of such payment; provided that if the Overpaid Lender is subsequently required (whether by order of a court or otherwise) in that to repay any portion of the Loan Obligations due Excess Amount to the other Canadian Borrower or the U.S. Borrower, each Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their respective forthwith pay its Rateable Shares; provided, however, that:
(a) if all or part Portion of such proportionately greater payment received by such purchasing portion to the Agent for the account of the Overpaid Lender. For the purposes of paragraph (b) above and the proviso to this Section 11.15, the Rateable Portion of any Lender shall be recovered from a Restricted Group Member by calculated with reference to any Loans outstanding under the Selling Lender or Lenders, such purchase shall be rescinded and applicable Tranche in respect of 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 interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full; and
(b) 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 Overpaid Lender, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such amount returned, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in full.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts (a) If, at any time, the proportion which any Lender Party (a "RECOVERING LENDER PARTY") has received or recovered (whether voluntary, involuntary, by application of set off or otherwise) in respect of its portion of any payment (a "RELEVANT PAYMENT") to be Shared. Except made under this Agreement or under any other Loan Document (other than any Hedging Agreement to which it is party) by any Obligor for any the account of such Recovering Lender Party and one or more other Lender Parties is greater (the amount of such excess being herein called an "EXCESS AMOUNT") than the proportion thereof received or recovered by the Lender Party or Lender Parties entitled to participate in the payment Obligation to which such payment relates and which are receiving or recovering the smallest proportion thereof (which, for the purposes hereof shall include a nil receipt or recovery), (it being understood that is required all relevant payments are to be shared distributed among the Lenders in accordance with their respective relevant Funding Percentages), then:
(i) such Recovering Lender Party shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to the Recovering Lender Party an amount equal to the amount paid out by such Recovering Lender Party pursuant to Subsection 15.22.2clause (a)(i), the amount so due being treated, for the purposes hereof, as if a Lender, through it were an unpaid part of such Recovering Lender Party's portion of such relevant payment; and
(iii) the exercise of any right of set-off or otherwise Agent shall treat the amount received by it from such Recovering Lender Party pursuant to clause (save for any payment made to a)(i) as if such amount had been received by 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 Borrower in respect of such relevant payment and shall pay 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 same to the other Lender Parties in accordance with their respective relevant Funding Percentages. Within two (2) Business Days after any Lender Party receives or Lenders recovers any relevant payment otherwise than by payment through the Agent, that Lender Party shall notify the Agent of the amount and currency so received or recovered, how it was received or recovered and whether it represents principal, interest or other sums.
(the b) If any sum (a "Selling Lender or LendersRELEVANT SUM") so that received or recovered by a Recovering Lender Party in respect of any amount owing to it by the respective receipts shall be pro rata according to their respective Rateable Shares; providedBorrower becomes repayable and is repaid by such Recovering Lender Party, however, thatthen:
(i) each Lender Party which has received a share of such relevant sum by reason of the implementation of clause (a) if all or part shall, upon request of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or LendersAgent, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders pay to the extent Agent for the account of such recovery, together with interest thereon at the Recovering Lender Party an amount equal to its share of the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullsum; and
(bii) there shall thereupon fall due from the Borrower to each such Lender Party an amount equal to the amount paid out by it pursuant to clause (b)(i), the amount so due being treated, for the purposes hereof, as if all or part it were the sum payable to such Lender Party against which such Lender Party's share of such proportionately greater payment received by such purchasing relevant sum was applied.
(c) If any Lender is found shall commence any action or proceeding in any court to have been a transfer in fraud of creditors enforce its rights hereunder or a preferential payment under any applicable bankruptcy other Loan Document after consultation with the other Lenders and, as a result thereof or insolvency legislation or is otherwise in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be 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 share any portion of such excess amount returnedwith any Lender which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding (having had notice of such action or proceeding) or commence and payable from the Business Day following the day such return is requested until it is paid in fulldiligently prosecute a separate action or proceeding to enforce its rights.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts (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 Shared. Except 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 any 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 is required all relevant payments are to be shared pursuant to Subsection 15.22.2, if a Lender, through distributed among the exercise of any right of set-off or otherwise (save for any payment made to it from the Agent Lenders in accordance with their respective Funding Percentages), then:
(i) such Recovering Finance Party shall pay to 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 Agent an amount of the Loan Obligations due equal to such other Lender excess amount;
(having regard ii) there shall thereupon fall due from the Borrower to the respective Rateable Shares of Recovering Finance Party an amount equal to the Lendersamount paid out by such Recovering Finance Party pursuant to clause (a)(i), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of amount so due being treated, for the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their respective Rateable Shares; providedpurposes hereof, however, that:
(a) as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent Recovering Finance Party's portion of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullpayment; 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 all If any sum (a "RELEVANT SUM") received or part 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 proportionately greater payment received 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 purchasing 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 is found shall commence any action or proceeding in any court to have been a transfer in fraud of creditors enforce its rights hereunder or a preferential payment under any applicable bankruptcy other Finance Document after consultation with the other Lenders and, as a result thereof or insolvency legislation or is otherwise in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be 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 share any portion of such excess amount returnedwith any Lender which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding (having had notice of such action or proceeding) or commence and payable from the Business Day following the day such return is requested until it is paid in fulldiligently 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. 15.22.1 Disproportionate Receipts to be Shared. Except for 28.1 If, at any payment that is required to be shared pursuant to Subsection 15.22.2time, if the proportion which any Bank (a Lender"Recovering Bank") has received or recovered (whether by payment, through the exercise of any a right of set-off or otherwise (save for combination of accounts or otherwise) in respect of its portion of any payment (a "relevant payment") to be made to it from under this Agreement by the Agent in accordance with Borrower for account of such Recovering Bank and one or more other Banks is greater (the provisions hereof) receives payment of a portion of the Loan Obligations due such receipt or recovery giving rise to it which is greater such excess proportion being herein called an "excess amount") than the proportion thereof so received or recovered by any other Lender in respect of the aggregate amount of Bank or Banks so receiving or recovering the Loan Obligations due to such other Lender (having regard to the respective Rateable Shares of the Lenders)smallest proportion thereof, 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, thatthen:
(ai) such Recovering Bank shall pay to the Agent an amount equal to such excess amount;
(ii) there shall thereupon fall due from the Borrower to such Recovering Bank an amount equal to the amount paid out by such Recovering Bank pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent Recovering Bank's portion of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullpayment; and
(biii) the Agent shall treat the amount received by it from such Recovering Bank pursuant to paragraph (i) above as if all or part such amount had been received by it from the Borrower in respect of such proportionately greater relevant payment and shall pay the same to the persons entitled thereto (including such Recovering Bank) pro rata to their respective entitlements thereto.
28.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank in respect of any amount owing to it by the Borrower becomes repayable and is repaid by such purchasing Lender is found Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by reason of the implementation of Clause 28.1 shall, upon request of the Agent, pay to have been the Agent for account of such Recovering Bank an amount equal to its share of such relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such Bank an amount equal to the amount paid out by it pursuant to paragraph (i) above, the amount so due being, for the purposes hereof, treated as if it were the sum payable to such Bank against which such Bank's share of such relevant sum was applied.
28.3 If any Bank shall commence any action or proceeding in any court to enforce its rights hereunder and, as a transfer result thereof or in fraud of creditors or a preferential payment under connection therewith, shall receive any applicable bankruptcy or insolvency legislation or is otherwise excess amount (as defined in Clause 28.1), then such Bank shall not be 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 share any portion of such excess amount returnedwith any Bank which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding or commence and payable from the Business Day following the day such return is requested until it is paid diligently prosecute a separate action or proceeding to enforce its rights in full.another court. Part 10
Appears in 1 contract
Sources: Senior Subordinated Facility Agreement (Ifco Systems Nv)
Redistribution of payments. 15.22.1 Disproportionate Receipts 13.22.1 If any Lender shall exercise any right of counter-claim, set-off or bankers' lien or similar right with respect to the property of an Obligor or if under any applicable bankruptcy, insolvency or other similar law it receives a secured claim the security for which is a debt owed by it to such Obligor, it shall apportion the amount thereof proportionately between:
13.22.1.1 amounts comprised in the Loan Obligations owing to such Lender, which amounts shall be Shared. Except applied in accordance with this Agreement; and
13.22.1.2 amounts otherwise owed to it by such Obligor; provided that any cash collateral account funded by way of advances from an Obligor as collateral for a documentary or standby credit or letter of guarantee issued by such Lender on behalf of such Obligor may be applied by such Lender to such amounts owed by such Obligor to such Lender in respect of any payment that is required to be shared pursuant to Subsection 15.22.2, if such documentary or standby credit or letter of guarantee without apportionment.
13.22.2 If a LenderLender shall, through the exercise of any right a right, or the receipt of set-off a secured claim described above 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) that if all or part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member an Obligor by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid but without interest. Such Lender shall exercise its rights in full; and
(b) if all or part respect of such proportionately greater payment received 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 such purchasing Lender is found subsections 13.22.1 or 13.22.2, it shall promptly provide full particulars thereof 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 be rescinded the Agent and the purchase price paid for Agent shall promptly provide copies of such participation shall be returned by such Selling Lender or Lenders particulars to the extent of such amount returned, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullother Lenders.
Appears in 1 contract
Redistribution of payments. 15.22.1 Disproportionate Receipts (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 Shared. Except 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 any 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 is required all relevant payments are to be shared pursuant to Subsection 15.22.2, if a Lender, through distributed among the exercise of any right of set-off or otherwise (save for any payment made to it from the Agent Lenders in accordance with their respective Funding Percentages), then:
(i) such Recovering Finance Party shall pay to 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 Facility Agent an amount of the Loan Obligations due equal to such other Lender excess amount;
(having regard ii) there shall thereupon fall due from the Borrower to the respective Rateable Shares of Recovering Finance Party an amount equal to the Lendersamount paid out by such Recovering Finance Party pursuant to clause (a)(i), the Lender receiving such proportionately greater payment shall purchase a participation (which shall be done simultaneously with receipt of such payment) in that portion of amount so due being treated, for the Loan Obligations due to the other Lender or Lenders (the "Selling Lender or Lenders") so that the respective receipts shall be pro rata according to their respective Rateable Shares; providedpurposes hereof, however, that:
(a) as if all or it were an unpaid part of such proportionately greater payment received by such purchasing Lender shall be recovered from a Restricted Group Member by the Selling Lender or Lenders, such purchase shall be rescinded and the purchase price paid for such participation shall be returned by such Selling Lender or Lenders to the extent Recovering Finance Party’s portion of such recovery, together with interest thereon at the relevant interbank rate calculated and payable from the Business Day following the day such return is requested until it is paid in fullpayment; 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 all If any sum (a “relevant sum”) received or part 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 proportionately greater payment received 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 purchasing 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 is found shall commence any action or proceeding in any court to have been a transfer in fraud of creditors enforce its rights hereunder or a preferential payment under any applicable bankruptcy other Finance Document after consultation with the other Lenders and, as a result thereof or insolvency legislation or is otherwise in connection therewith, shall receive any excess amount (as referred to in clause (a)) then such Lender shall not be 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 share any portion of such excess amount returnedwith any Lender which has the legal right to, together with interest thereon at the relevant interbank rate calculated but does not, join in such action or proceeding (having had notice of such action or proceeding) or commence and payable from the Business Day following the day such return is requested until it is paid in fulldiligently prosecute a separate action or proceeding to enforce its rights.
Appears in 1 contract
Sources: Loan Agreement (Yamana Gold Inc)