Sharing of Recoveries. (a) Each Lender agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14, such Lender shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans that is greater than the proportion received by any other Lender in respect of the aggregate of such amounts due and payable to such other Lender hereunder, then the Lender receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lenders; provided that if all or part of such proportionately greater payment received by the purchasing Lender is thereafter recovered by or on behalf of such Lender, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender to the extent of such recovery, but without interest (unless the purchasing Lender is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender under Sections 1.08, 1.09, 1.10, 8.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation. (b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 4 contracts
Sources: Loan Agreement, Loan Agreement (PLM Equipment Growth & Income Fund Vii), Loan Agreement (PLM Equipment Growth Fund Vi)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.141.21, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or Letter of Credit Participations or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among rata; provided, however, that no such participation shall be deemed to have been so purchased in any Bid Rate Loans of any of the Lendersother Banks; provided provided, further, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 1.22 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.081.14, 1.091.15, 1.101.16, 8.02 1.19, 1.20, 8.02, and 8.07 (subject to any condition imposed on a Lender Bank hereunder with respect thereto, including delivery of the forms and certificates required under Section 1.19(a)(iv)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 2 contracts
Sources: Credit Agreement (Xcel Energy Inc), 364 Day Credit Agreement (Xcel Energy Inc)
Sharing of Recoveries. (a) Each Lender agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law proceeding being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14, such Lender shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender in respect of the aggregate of such amounts due and payable to such other Lender hereunder, then the Lender receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender is thereafter recovered by or on behalf of the Borrower from such Lender, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender to the extent of such recovery, but without interest (unless the purchasing Lender is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender shall be required to pay interest at a like rate). So long as the purchasing Lender has not advised it to the contrary, each selling Lender may assume, for purposes of Section 9.09(b), that no Tax is required to withheld or deducted by the Borrower from, or is otherwise payable by the Borrower in connection with, any payment by the Borrower to or for the account of such Lender under the Loan Documents. The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender under Sections 1.081.13, 1.097.02, 1.107.03, 8.02 7.04, 7.05, 7.06, 9.02 and 8.07 9.07 (subject to any condition imposed on a Lender hereunder with respect thereto, including delivery of the forms and certificates required under Section 1.13(a)(iii)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a9.08(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 2 contracts
Sources: Secured Credit Agreement (Frontier Airlines Inc /Co/), Secured Credit Agreement (Frontier Airlines Inc /Co/)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the BorrowerBorrower and any Guarantor, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower or any Guarantor in a manner contrary to the provisions of Section 1.142.10, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations Participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower or any Guarantor from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 8.12 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.082.10, 1.097.4, 1.10, 8.02 7.5 and 8.07 7.7 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 2 contracts
Sources: Credit Agreement (Electronic Fab Technology Corp), Credit Agreement (Eftc Corp/)
Sharing of Recoveries. (a) Each The Agent, the Issuer and each Lender agrees that, that --------------------- if, for any reasonreason (whether voluntary, including as a result of (i) involuntary, through the exercise of any right of counterclaim, set-off, banker’s lien off or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14otherwise), such Lender shall receive Person receives payment of a proportion of the aggregate amount of Obligations due and payable to it hereunder as principal of or interest on the Loans that is greater than the proportion received by any other Lender in respect of the aggregate of such amounts due and payable to such other Lender hereunderits allocable share thereof, then the Lender Person receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders applicable Persons hereunder so that all such recoveries with respect to such amounts due and payable hereunder the Obligations (net of costs of collection) shall be pro rata properly allocated among the LendersPersons entitled to the same; provided provided, however, that if all or part of such -------- ------- proportionately greater payment received by the purchasing Lender Person is thereafter recovered by or on behalf of the Borrower from such LenderPerson, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Person to the extent of such recovery, but without interest (unless the purchasing Lender Person is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 8.06 shall, with respect to such participation, to the extent permitted under Governmental Requirements, be entitled to all of the rights of a Lender under Sections 1.08, 1.09, 1.10, 8.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans Obligations in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Lyondell Chemical Co), Revolving Credit Agreement (Lyondell Chemical Co)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.141.13, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). So long as the purchasing Bank has not advised it to the contrary, each selling Bank may assume, for purposes of Section 9.09(b), that no Tax is required to withheld or deducted by the Borrower from, or is otherwise payable by the Borrower in connection with, any payment by the Borrower to or for the account of such Bank under the Loan Documents. The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank hereunder including but not limited to rights under Sections 1.081.11(c) and (d), 1.097.02, 1.107.03, 8.02 7.04, 7.05, 7.06, 7.07 9.02 and 8.07 9.07 (subject to any condition imposed on a Lender Bank hereunder with respect thereto, including delivery of the forms and certificates required under Section 1.11(e)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a9.08(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Reinsurance Group of America Inc), Credit Agreement (Reinsurance Group of America Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.141.21, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of principal, interest or interest on the Loans facility fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate)) . The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 11.08 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.089.02, 1.098.03, 1.10, 8.02 11.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) 11.07 and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) . Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) 11.08 and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sources: Credit Agreement (Lechters Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans Loans, Drawings or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees agree that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled entitled, to the extent permitted by Applicable Law, to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may may, to the extent permitted by Applicable Law, exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were was directly indebted to the holder of such participation for Loans to the Borrower in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the such Borrower for amounts subject to the sharing provisions of Section 8.08(a9.09(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law proceeding being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of principal, interest or interest on the Loans fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided provided, however, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations participation shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) 9.08 and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject Notwithstanding anything to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacitycontrary contained herein, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.Section
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Liability, which Liability constitutes "debt" under Section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent Conveyance Act or the Uniform Fraudulent Transfer Act, owed by it to the a Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the a Borrower in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among rata; provided, however, that no such participation shall be deemed to have been so purchased in any Bid Rate Loans of any of the Lendersother Banks; provided and provided, further, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of a Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower Borrowers expressly consents consent to the foregoing arrangements and agrees agree that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 10.09 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 10.02 and 8.07 10.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower Borrowers were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any --------------------- reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt "debt" under Section 101(11) of the Bankruptcy Code owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower Each of the Borrowers and the Guarantors expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 10.09 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 10.02 and 8.07 10.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower Loan Parties were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Account Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower any Account Party in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or Reimbursement Obligations or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Account Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower So long as the purchasing Bank has not advised it to the contrary, each selling Bank may assume, for purposes of Section 10.09(b), that no Tax is required to be withheld or deducted by any Account Party from, or is otherwise payable by any Account Party in connection with, any payment by any Account Party to or for the account of such Bank under the Loan Documents. Each Account Party expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a10.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank hereunder including but not limited to rights under Sections 1.081.12(c) and (d), 1.098.02, 1.108.03, 8.02 8.04, 8.05, 8.06, 8.07, 10.02 and 8.07 10.07 (subject to any condition imposed on a Lender Bank hereunder with respect thereto, including delivery of the forms and certificates required under Section 1.12(e)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower such Account Party were directly indebted to the holder of such participation for Loans and Reimbursement Obligations in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower any Account Party in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower Account Parties for amounts subject to the sharing provisions of Section 8.08(a10.08(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderAccount Parties.
Appears in 1 contract
Sources: Credit Agreement (Reinsurance Group of America Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative any Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Each of LIN Television and the Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 9.09 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.141.15, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower and each Guarantor expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower and each Guarantor were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.142.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). So long as the purchasing Bank has not advised it to the contrary, each selling Bank may assume, for purposes of Section 10.09(b), that no Tax is required to withheld or deducted by the Borrower from, or is otherwise payable by the Borrower in connection with, any payment by the Borrower to or for the account of such Bank under the Loan Documents. The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a10.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.082.13, 1.098.02, 1.108.03, 8.02 8.04, 8.05, 10.02 and 8.07 10.07 (subject to any condition imposed on a Lender Bank hereunder with respect thereto, including delivery of the forms and certificates required under Section 2.13(a)(iv)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between between
(i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a10.08(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sources: Secured Revolving O&m Costs Facility (Aes Eastern Energy Lp)
Sharing of Recoveries. (a) Each The Agent, each Issuer and each Lender agrees that, that if, for any reasonreason (whether voluntary, including as a result of (i) involuntary, through the exercise of any right of counterclaim, set-off, banker’s lien off or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14otherwise), such Lender shall receive Person receives payment of a proportion of the aggregate amount of Obligations due and payable to it hereunder as principal of or interest on the Loans that is greater than the proportion received by any other Lender in respect of the aggregate of such amounts due and payable to such other Lender hereunderits allocable share thereof, then the Lender Person receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders applicable Persons hereunder so that all such recoveries with respect to such amounts due and payable hereunder the Obligations (net of costs of collection) shall be pro rata properly allocated among the LendersPersons entitled to the same; provided provided, however, that if all or part of such proportionately greater payment received by the purchasing Lender Person is thereafter recovered by or on behalf of the Borrower from such LenderPerson, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Person to the extent of such recovery, but without interest (unless the purchasing Lender Person is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 8.06 shall, with respect to such participation, to the extent permitted under Governmental Requirements, be entitled to all of the rights of a Lender under Sections 1.08, 1.09, 1.10, 8.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans Obligations in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder (A) as principal of or interest on the RC Loans or (B) fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate respective aggregates of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder in such RC Loans or fees, as the case may be, so that all such recoveries with respect to such respective amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided provided, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a10.09(a) shall, with respect to such participation, participation be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 10.02 and 8.07 10.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower any Loan Party in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, first, between (i) obligations of the Borrower such Loan Party for amounts subject to the sharing provisions of Section 8.08(a10.09(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacityLoan Party and, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercisesecond, and retain the benefit of, any such right with respect to any other indebtedness or other obligation amounts allocated to obligations of the Borrower such Loan Party referred to such Lenderin clause (i), between, first, to RC Loans and second, participations in Swing Loans.
Appears in 1 contract
Sources: Guaranteed Credit Agreement (Zd Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt "debt" under Section 101(11) of the Bankruptcy Code owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower Each of the Borrowers and the Guarantors expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 10.09 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 10.02 and 8.07 10.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower Loan Parties were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar rightright (including its right under Section 1.11(c)), (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 9.09 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.097.04, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.may
Appears in 1 contract
Sources: Secured Revolving/Term Credit Agreement (Resource Bancshares Mortgage Group Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.141.15, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower and each Guarantor expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) 9.09 shall, with respect to such participation, be entitled to 55 61 all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower and each Guarantor were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent Agent, any Issuing Bank or the Borrower in a manner contrary to the provisions of Section 1.141.12, such Lender shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of principal, interest or interest on the Loans commitment fees that is greater than the proportion received by any other Lender in respect of the aggregate of such amounts due and payable to such other Lender hereunder, then the Lender receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender is thereafter recovered by or on behalf of the Borrower from such Lender, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender to the extent of such recovery, but without interest (unless the purchasing Lender is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) 9.08 and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a9.09(a) and (ii) other obligations Liabilities of the Borrower. Notwithstanding the provisions of Section 9.09(a), each Lender shall be entitled to exercise any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower owing in any manner as it may choose and to apply the amount subject to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender exercise to exercise any such right or shall affect the right payment of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation Liabilities of the Borrower other than obligations subject to such Lenderthe sharing provisions of Section 9.09(a).
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (California Steel Industries Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.142.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or Unreimbursed Drawings or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided provided, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). So long as the purchasing Bank has not advised it to the contrary, each selling Bank may assume, for purposes of Section 11.09(b), that no Tax is required to withheld or deducted by the Borrower from, or is otherwise payable by the Borrower in connection with, any payment by the Borrower to or for the account of such Bank under the Loan Documents. The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a11.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.082.13, 1.099.02, 1.109.03, 8.02 9.04, 9.05, 11.02 and 8.07 11.07 (subject to any condition imposed on a Lender Bank hereunder with respect thereto, including delivery of the forms and certificates required under Section 2.13(a)(iv)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a11.08(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.141.13, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reasonincluding, including but not limited to, as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its receipt of a secured claim in under any applicable bankruptcy, insolvency or other similar law being deemed secured by law, the security for which is a debt owed by it to the Borrower, including a secured claim deemed secured under Section 506 of the Bankruptcy Code11 U.S.C.A. Sec. 506, or (iiic) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.141.14 or (d) any other reason, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder and under its Notes as principal of principal, interest or interest on the Loans fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender hereunderBank hereunder and under its Notes, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder and under their Notes so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) and under all the Notes held by the Banks shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate), provided further that nothing in this Section 9.06 shall impair the right of any Bank to exercise any right of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower and its Subsidiaries other than the Obligations subject to the sharing provisions of this Section 9.06. The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder or under any such Note so purchased or acquired pursuant to this Section 8.08(a) 9.06 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.097.04, 1.10, 8.02 9.02(d) and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) 9.05 and may exercise any and all rights of set-off with respect to such participation as fully as though if the Borrower were was directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, --------------------- for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.141.15, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a9.09(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sources: Credit Agreement (Primestar Inc)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, Code or (iii) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.141.21, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder (A) as principal of or interest on the Loans or with respect to any LC Participation or any Swing Loan Participation or (B) fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate respective aggregates of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder in such Loans or fees, as the case may be, so that all such recoveries with respect to such respective amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater -------- payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a10.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank as fully as though it were a Bank under Sections 1.081.20, 1.097.02 through 7.06, 1.10, 8.02 10.02 and 8.07 10.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower any Loan Party in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, first, between (i) obligations of the Borrower such Loan Party for amounts subject to the sharing provisions of Section 8.08(a10.09(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacityLoan Party and, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercisesecond, and retain the benefit of, any such right with respect to any other indebtedness or other obligation amounts allocated to obligations of the Borrower such Loan Party referred to such Lenderin clause (i), between, first, to Loans and second, Swing Loan Participations.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the BorrowerBorrower and any Guarantor, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower or any Guarantor in a manner contrary to the provisions of Section 1.14SECTION 2.9, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided PROVIDED that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower or any Guarantor from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a) SECTION 8.13 shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.08SECTIONS 2.9, 1.097.4, 1.10, 8.02 and 8.07 7.5 AND 7.7 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans Loans, Drawings or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees agree that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled entitled, to the extent permitted by Applicable Law, to all of the rights of a Lender Bank under Sections 1.087.02 of the Other Credit Facility, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may may, to the extent permitted by Applicable Law, exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were was directly indebted to the holder of such participation for Loans to the Borrower in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s 's lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the such Borrower for amounts subject to the sharing provisions of Section 8.08(a9.09(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sources: 364 Day Revolving Credit Facility (Trigen Energy Corp)
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (ia) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (iib) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iiic) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.141.15, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided PROVIDED that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower and each Guarantor expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 9.08 (subject to any condition imposed on a Lender Bank hereunder with respect thereto) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower and each Guarantor were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law being deemed secured by a debt Debt owed by it to the Borrower, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower in a manner contrary to the provisions of Section 1.142.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of or interest on the Loans or Unreimbursed Drawings or fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided provided, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of the Borrower from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). So long as the purchasing Bank has not advised it to the contrary, each selling Bank may assume, for purposes of Section 11.09(b), that no Tax is required to be withheld or deducted by the Borrower from, or is otherwise payable by the Borrower in connection with, any payment by the Borrower to or for the account of such Bank under the Loan Documents. The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a11.08(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.08Section 2.13, 1.09Section 9.02, 1.10Section 9.03, 8.02 and 8.07 Section 9.04, Section 9.05, Section 11.02, Section 11.07 (subject to any condition imposed on a Lender Bank hereunder with respect thereto, including delivery of the forms and certificates required under Section 2.13(a)(iv)) and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender Bank agrees that, in the event it exercises to exercise any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject to the sharing provisions of Section 8.08(a11.08(a) and (ii) other obligations Liabilities of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacity, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such LenderBorrower.
Appears in 1 contract
Sharing of Recoveries. (a) Each Lender Bank agrees that, if, for any reason, including as a result of (i) the exercise of any right of counterclaim, set-off, banker’s 's lien or similar right, (ii) its claim in any applicable bankruptcy, insolvency or other similar law proceeding being deemed secured by a debt Debt owed by it to the Borrowerany Loan Party, including a claim deemed secured under Section 506 of the Bankruptcy Code, or (iii) the allocation of payments by the Administrative Agent or the Borrower any Loan Party in a manner contrary to the provisions of Section 1.14, such Lender Bank shall receive payment of a proportion of the aggregate amount due and payable to it hereunder as principal of principal, interest or interest on the Loans fees that is greater than the proportion received by any other Lender Bank in respect of the aggregate of such amounts due and payable to such other Lender Bank hereunder, then the Lender Bank receiving such proportionately greater payment shall purchase participations (which it shall be deemed to have done simultaneously upon the receipt of such payment) in the rights of the other Lenders Banks hereunder so that all such recoveries with respect to such amounts due and payable hereunder (net of costs of collection) shall be pro rata among the Lendersrata; provided provided, however, that if all or part of such proportionately greater payment received by the purchasing Lender Bank is thereafter recovered by or on behalf of any Loan Party from such LenderBank, such purchases shall be rescinded and the purchase prices paid for such participations participation shall be returned to such Lender Bank to the extent of such recovery, but without interest (unless the purchasing Lender Bank is required to pay interest on the amount recovered to the Person recovering such amount, in which case the selling Lender Bank shall be required to pay interest at a like rate). The Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any rights hereunder so purchased or acquired pursuant to this Section 8.08(a9.09(a) shall, with respect to such participation, be entitled to all of the rights of a Lender Bank under Sections 1.087.02, 1.09, 1.10, 8.02 9.02 and 8.07 (subject to any condition imposed on a Lender hereunder with respect thereto) 9.08 and may exercise any and all rights of set-off with respect to such participation as fully as though the Borrower were directly indebted to the holder of such participation for Loans in the amount of such participation.
(b) Each Lender agrees that, in the event it exercises any right of counterclaim, set-off, banker’s lien or similar right that it may have in respect of the Borrower in a manner so as to apportion the amount subject to such exercise, on a pro rata basis, between (i) obligations of the Borrower for amounts subject Notwithstanding anything to the sharing provisions of Section 8.08(a) and (ii) other obligations of the Borrower owing to such Lender in its individual capacity and not as an agent or similar capacitycontrary contained herein, provided that nothing contained in this Section 8.08 shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefit of, any such right with respect to any other indebtedness or other obligation of the Borrower to such Lender.Section
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