Exhibit 10.5
[EXECUTION]
AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as
amended or supplemented from time to time, herein called this
“ Agreement ”), is entered into as of
June 29, 2004, by and among the BANKS (as defined below), BANK
OF AMERICA, N.A., as Administrative Agent for the Banks (in such
capacity, the “ Agent ”) and as Collateral Agent
for the Lenders (in such capacity, the “ Collateral
Agent ”), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
(“ PICA ”), PRUCO LIFE INSURANCE COMPANY
(“ Pruco ”), ING LIFE INSURANCE & ANNUITY
COMPANY (“ ING ”), PRUDENTIAL INVESTMENT
MANAGEMENT, INC. (“ Prudential ”), PRUCO LIFE
INSURANCE COMPANY OF NEW JERSEY (“ Pruco NJ ”),
GIBRALTER LIFE INSURANCE CO., LTD. (“ Gibralter
”), RGA REINSURANCE COMPANY (“ RGA ”),
AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, INC. (“
American ”), FORTIS BENEFITS INSURANCE COMPANY
(“ Fortis ”), and CONNECTICUT GENERAL LIFE
INSURANCE COMPANY (“ Connecticut ” and, together
with PICA, Pruco, ING, Prudential, Pruco NJ, Gibralter, RGA,
American, and Fortis, collectively, the “ Initial
Prudential Noteholders ”).
W I T N E S S E T H:
WHEREAS, WESTERN GAS RESOURCES, INC., a Delaware
corporation (herein called the “ Company ”), the
Banks and the Agent have entered into that certain Amended and
Restated Credit Agreement of even date herewith (herein, as from
time to time amended, supplemented or restated, called the “
Bank Agreement ”) which amends and restates in its
entirety the Credit Agreement dated as of April 24, 2003 among
the Company, the Agent and the lenders named therein (the
“Existing Credit Agreement”);
WHEREAS, pursuant to the Bank Agreement, the Banks have
agreed to make revolving loans to the Company and to issue letters
of credit for the account of the Company, and the Company has
executed in favor of each Bank a promissory note (such promissory
notes, as from time to time supplemented or amended and all
promissory notes given in renewal and extension thereof are
collectively referred to herein as the “ Bank Notes
”);
WHEREAS, one or more of the Banks or Prudential
Affiliates (as defined herein) may, from time to time, enter into
Swap Contracts with the Company or Affiliates of the
Company;
WHEREAS, payment of the obligations of the Company to the
Banks and the Agent arising under or in connection with the Bank
Agreement and the Swap Contracts from time to time is guaranteed
pursuant to that certain Guaranty of even date herewith from the
Guarantors in favor of Agent and the Banks (herein, as amended from
time to time, collectively called the “ Bank Guaranty
”) which amends and restates the Guaranty dated as of
April 24, 2003 from each Guarantor in favor of the Banks and
the Agent;
WHEREAS, the Company and the Initial Prudential
Noteholders have entered into that certain Third Amended and
Restated Master Shelf Agreement dated as of December 19, 1991
and effective as of January 13, 2003 (herein, as from time to
time amended, supplemented or restated, called the “
Prudential Agreement ”), which amended and restated
the Master Shelf Agreement dated as of December 19, 1991
between the Company and PICA;
WHEREAS, the Company has issued and may hereafter issue
Senior Notes pursuant to the Prudential Agreement, in each case
evidencing indebtedness of the Company to the Initial Prudential
Noteholders and all subsequent holders of Prudential
Notes;
WHEREAS, each Guarantor has heretofore executed and
delivered to Prudential its guaranty (herein, as amended from time
to time, collectively called the “ Prudential
Guaranties ”), guaranteeing payment of obligations of the
Company to Prudential, for itself and on behalf of the Initial
Prudential Noteholders under the Prudential Agreement and all
subsequent holders of Prudential Notes under the Prudential
Agreement, arising under or in connection with the Prudential Notes
and the Prudential Agreement and, to the extent any Prudential
Affiliate enters into a Swap Contract, any such Swap Contract (by
amendment to the Prudential Guaranties);
WHEREAS, hereafter subsidiaries of the Company may from
time to time issue additional guaranties in favor of the Banks or
any of them in connection with the Bank Agreement, in favor of any
Swap Lenders in connection with any Swap Contracts, or in favor of
Prudential in connection with the Prudential Notes and the
Prudential Agreement (any such guaranties herein being called
“ Additional Guaranties ” and any subsidiaries
executing Additional Guaranties herein being called the “
Additional Guarantors ”);
WHEREAS, the Company has executed and delivered to the
Agent for the benefit of the Banks that certain Amended and
Restated Pledge Agreement of even date herewith (as from time to
time supplemented, amended or restated, the “ Company
Pledge Agreement ”), which amends and restates in its
entirety the Pledge Agreement dated as of April 24, 2003,
pursuant to which the Company has granted to the Agent a security
interest in all of its ownership interests in certain of its
subsidiaries;
WHEREAS, MIGC has executed and delivered to the Agent for
the benefit of the Banks that certain Amended and Restated Stock
Pledge Agreement of even date herewith (as from time to time
supplemented, amended or restated, the “ Subsidiary Pledge
Agreement ”), which amends and restates the Stock Pledge
Agreement dated as of April 24, 2003, pursuant to which MIGC
has granted to the Agent a security interest in all of its
ownership interests in MGTC;
WHEREAS, the Company has executed and delivered to
Prudential that certain Pledge Agreement dated as of April 29,
1999 (as amended by Amendment No. 2 to Pledge Agreement dated as of
April 24, 2003 appointing Bank of America, N.A. as collateral
agent thereunder), pursuant to which the Company has granted to
Prudential, for itself and on behalf of the Initial Prudential
Noteholders under the Prudential Agreement and all subsequent
holders of the Prudential Notes under the Prudential Agreement, a
security interest in all of its ownership interests in certain of
its subsidiaries, and MIGC has executed and delivered to Prudential
that
2
certain Pledge Agreement dated as of
April 29, 1999 (as amended by Amendment No. 2 to Pledge
Agreement dated as of April 24, 2003 appointing Bank of
America, N.A. as collateral agent thereunder), pursuant to which
MIGC has granted to Prudential, for itself and on behalf of the
Initial Prudential Noteholders under the Prudential Agreement and
all subsequent holders of the Prudential Notes under the Prudential
Agreement, a security interest in all of its ownership interests in
MGTC (such Pledge Agreements as from time to time amended,
supplemented or restated herein being collectively called the
“ Prudential Pledge Agreements ”);
WHEREAS, subsidiaries of the Company may from time to
time create additional pledge agreements in favor of the Banks or
any of them in connection with the Bank Agreement, in favor of any
Swap Lenders in connection with any Swap Contracts, or in favor of
the holders of the Prudential Notes in connection with the
Prudential Agreement (any such pledge agreements herein being
called the “ Additional Pledge Agreements ” and
any subsidiaries executing such Additional Pledge Agreement herein
being collectively called the “ Additional Pledgors
”);
WHEREAS, the Agent, the Collateral Agent, Prudential, and
the Banks have entered into that certain Intercreditor Agreement
dated as of as of April 24, 2003 (as amended and supplemented
to the date hereof, the “ Existing Intercreditor
Agreement ”) to evidence their agreement with respect to
certain payments that may be received by the Lenders under or in
connection with the Subject Guaranties and the Pledge Agreements;
and
WHEREAS, the Lenders desire to amend and restate the
Existing Intercreditor Agreement as provided herein;
NOW, THEREFORE,
in consideration of the premises and
the mutual agreements herein contained, the Lenders hereby agree
that the Existing Intercreditor Agreement is hereby amended and
restated to read in its entirety as follows:
1.
Definitions
. As used herein the following
definitions shall have the meanings set forth below:
“ Acceleration Event
” means (i) the failure by the Company to pay in full the
outstanding principal balance of and any accrued and unpaid
interest on any Note on the final maturity date of such Note; (ii)
the acceleration of the outstanding principal balance of and any
accrued and unpaid interest on, any Note by any Lender or by any
person or entity acting on behalf of any Lender; or (iii) any of
the Debtor Parties (A) suffers the entry against it of a judgment,
decree or order or relief by a court of competent jurisdiction in
an involuntary proceeding commenced under any applicable
bankruptcy, insolvency or other similar law of any jurisdiction now
or hereafter in effect, including the federal Bankruptcy Code, as
from time to time amended, or has any such proceeding commenced
against it which remains undismissed for a period of sixty days;
(B) commences a voluntary case under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect, including the
federal Bankruptcy Code, as from time to time amended; or applies
for or consents to the entry of an order for relief in an
involuntary case under any such law; or makes a general assignment
for the benefit of creditors; or fails generally to pay (or admits
in writing its inability to pay) its debts as such debts
become
3
due; or takes corporate or other
action to authorize any of the foregoing; or (C) suffers the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
all or a substantial part of its assets in a proceeding brought
against or initiated by it, and such appointment or taking
possession is neither made ineffective nor discharged within thirty
days after the making thereof, or such appointment or taking
possession is at any time consented to, requested by, or acquiesced
to by it.
“ Affiliate ”
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person
specified. “Control” means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or
otherwise. “Controlling” and
“Controlled” have meanings correlative thereto.
Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 15% or more of the
securities having ordinary voting power for the election of
directors, managing general partners or the equivalent.
“ Agent ” has the
meaning assigned to such term in the preamble of this
Agreement.
“ Additional Guaranties
” has the meaning assigned to such term in the preamble of
this Agreement.
“ Additional Guarantors
” has the meaning assigned to such term in the preamble of
this Agreement.
“ Additional Pledge
Agreements ” has the meaning assigned to such term in the
preamble of this Agreement.
“ Additional Pledgors
” has the meaning assigned to such term in the preamble of
this Agreement.
“ Banks ” means
the “Lenders” as such term is defined in the Bank
Agreement.
“ Bank Agreement
” has the meaning assigned to such term in the preamble of
this Agreement.
“ Bank Agreement
Obligations ” means all “Obligations” as
defined in the Bank Agreement, as from time to time supplemented,
amended or restated (including, without limitation, default
interest, interest accruing at the then applicable rate provided in
the Bank Agreement after the maturity of the Bank Notes and
interest accruing at the then applicable rate provided in the Bank
Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to any of the Debtor Parties, whether or not a claim for
post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, that
arise under, out of, or in connection with, the Bank Agreement, any
Bank Notes or any other document made, delivered or given in
connection therewith, whether on account of principal, interest,
premium, fees, indemnities, costs, expenses
4
or otherwise (including, without
limitation, all fees and disbursements of counsel to the Agent and
the Banks that are required to be paid by any of the Debtor Parties
pursuant to the terms of this Agreement, the Bank Agreement, any
Bank Notes or any other document made, delivered or given in
connection therewith).
“ Bank Guaranty ”
has the meaning assigned to such term in the preamble of this
Agreement.
“ Bank Notes ”
has the meaning assigned to such term in the preamble of this
Agreement.
“ Bank Pledge
Agreements ” means the Company Pledge Agreement and the
Subsidiary Pledge Agreement.
“ Calculation Date
” has the meaning assigned to such term in Section 2 of
this Agreement.
“ Collateral ”
means all property subject to the Security Documents.
“ Collateral Agent
” means Bank of America, N.A., in its capacity as Collateral
Agent under and subject to the terms and conditions of this
Agreement.
“ Collateral Agent-Related
Persons ” means the Collateral Agent, together with its
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
“ Company ” has
the meaning assigned to such term in the preamble of this
Agreement.
“ Company Pledge
Agreement ” has the meaning assigned to such term in the
preamble of this Agreement
“ Credit Agreements
” means the Bank Agreement, the Swap Contracts, and the
Prudential Agreement.
“ Debtor Parties
” means the Company, MIGC, any Guarantor, any Additional
Guarantor, any Additional Pledgor.
“ Determination Date
” has the meaning assigned to such term in Section 3 of
this Agreement
“ Existing Credit
Agreement ” has the meaning assigned to such term in the
preamble of this Agreement.
“ Existing Intercreditor
Agreement ” has the meaning assigned to such term in the
preamble of this Agreement.
“ Finance Documents
” means this Agreement, the Credit Agreements, the Security
Documents and all other documents and instruments under, by reason
of which, or pursuant to
5
which any or all of the indebtedness
and obligations arising under or pursuant to the Credit Agreements
are evidenced, governed, secured, guarantied, or otherwise dealt
with, and all other agreements, certificates, and other documents,
instruments and writings heretofore or hereafter delivered in
connection herewith or therewith.
“ Guarantors ”
means Mountain Gas Resources, Inc., a Delaware corporation, Western
Gas Resources-Texas, Inc., a Texas corporation, MGTC, Inc., a
Wyoming corporation (“ MGTC ”), MIGC, Inc., a
Delaware corporation (“ MIGC ”), Lance Oil &
Gas Company, Inc., a Delaware corporation, and Western Gas Wyoming,
L.L.C., a Wyoming limited liability company.
“ Indebtedness ”
means, with respect to any Calculation Date or Determination Date,
the aggregate outstanding principal amount of indebtedness of the
Company under the Bank Agreement, the Bank Notes, the Prudential
Agreement, and the Prudential Notes on such date.
“ Indemnified
Liabilities ” means any and all liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including reasonable
attorney’s costs and expenses) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or
asserted against any Collateral Agent-Related Person in any way
relating to or arising out of or in connection with (a) the
execution, delivery, enforcement, performance or administration of
this Agreement or any Security Document, (b) the use or proposed
use of the proceeds of any Collateral, or (c) any actual or
prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any
other theory (including any investigation of, preparation for, or
defense of any pending or threatened claim, investigation,
litigation or proceeding).
“ Initial Prudential
Noteholders ” has the meaning assigned to such term in
the preamble of this Agreement.
“ Lenders ” means
the Banks, the Agent, the Initial Prudential Noteholders and the
other holders from time to time of the Prudential Notes.
“ Majority Lenders
” means two or more Lenders, including at least one holder of
a Bank Note and one holder of a Prudential Note, whose
Proportionate Shares equal or exceed sixty-six and two-thirds
percent (66 2/3%).
“ Make-Whole Amount
” means with respect to the holders of the Prudential Notes,
the “Yield Maintenance Amount” as defined in the
Prudential Agreement except that (for purposes of this Agreement
only) the “Reinvestment Yield”, which is defined in the
Prudential Agreement and used in computing such Yield Maintenance
Amount, shall be the rate of 1.45% per annum with respect to the
9.24% Notes, 1.55% per annum with respect to the 7.61% Notes, 3.45%
per annum with respect to the 6.36% Notes, and 1.62% per annum with
respect to the 5.92% Notes, above the Reinvestment Yield, as it
would otherwise be calculated under the Prudential Agreement, and
with respect to additional Prudential Notes issued under the
Prudential Agreement, the initial spread over comparable average
life U.S. treasuries at time of commitment
6
to purchase such Prudential Notes
above the Reinvestment Yield, as it would otherwise be calculated
under the Prudential Agreement.
“ Notes ” means
the Bank Notes and the Prudential Notes.
“ Obligations ”
means (i) the Bank Agreement Obligations, (ii) the Swap Agreement
Obligations and (iii) the Prudential Agreement
Obligations.
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, governmental
agency or authority or other entity.
“ PICA ” has the
meaning assigned to such term in the preamble of this
Agreement.
“ Pledge Agreements
” means the Bank Pledge Agreements, the Prudential Pledge
Agreements, and all Additional Pledge Agreements.
“ Proportionate Share
” means a fraction (i) the numerator of which is the sum of
the Indebtedness owing to such Lender plus the Swap Amount and/or
Make-Whole Amount owing to such Lender and (ii) the denominator of
which is the sum of the Indebtedness owing to all Lenders plus the
Swap Amount and/or Make-Whole Amount owing to all
Lenders;
“ Pruco ” has the
meaning assigned to such term in the preamble of this
Agreement.
“ Prudential ”
has the meaning assigned to such term in the preamble of this
Agreement.
“ Prudential Affiliate
” means (i) any corporation or other entity controlling,
controlled by, or under common control with, Prudential either
directly or through subsidiaries and (ii) any managed account or
investment fund which is managed by Prudential or a Prudential
Affiliate described in clause (i) of this definition. For
purposes of this definition, the terms “control”,
“controlling” and “controlled” shall mean
the ownership, directly or through subsidiaries, of a majority of a
corporation’s or other entity’s Voting Stock or
equivalent voting securities or interests.
“ Prudential Agreement
” has the meaning assigned to such term in the preamble of
this Agreement.
“ Prudential Agreement
Obligations ” means the unpaid principal of, interest on
and “Yield Maintenance Amount” as defined in the
Prudential Agreement, if any, on the Prudential Notes and all other
obligations and liabilities of any of the Debtor Parties to the
holders from time to time of the Prudential Notes (including,
without limitation, interest accruing at the then applicable rate
provided in the Prudential Agreement, as from time to time
supplemented, amended or restated , or the Prudential Notes,
as applicable, after the maturity thereof and interest accruing at
the then applicable rate provided in the Prudential Agreement or
the Prudential Notes, as applicable, after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any of the Debtor
Parties, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred,
7
which may arise under, out of, or in
connection with, the Prudential Agreement, any Prudential Notes or
any other document made, delivered or given in connection
therewith, whether on account of principal, interest, Make-Whole
Amount, fees, indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to any
holder(s) of the Prudential Notes that are required to be paid by
the Debtor Parties pursuant to the terms of this Agreement, the
Prudential Agreement, the Prudential Notes or any other document
made, delivered or given in connection therewith).
“ Prudential Guaranties
” has the meaning assigned to such term in the preamble of
this Agreement.
“ Prudential Notes
” means the 7.61% Senior Notes due July 28, 2007 (the
“ 7.61% Notes ”), the 9.24% Senior Notes due
October 27, 2004 (the “ 9.24% Notes ”), the
6.36% Senior Notes, Series H, due January 17, 2008 (the
“ 6.36% Notes ”), the 5.92% Senior Notes, Series
I, due June 30, 2011 (the “ 5.92% Notes ”),
and any additional Senior Notes issued pursuant to the Prudential
Agreement or in replacement thereof.
“ Prudential Pledge
Agreements ” has the meaning assigned to such term in the
preamble of this Agreement.
“ Subject Guaranties
” means the Bank Guaranty, the Prudential Guaranties and the
Additional Guaranties.
“ Subject Guaranty Excess
Amount ” has the meaning assigned to such term in
Section 2 of this Agreement.
“ Subsidiary Pledge
Agreement ” has the meaning assigned to such term in the
preamble of this Agreement
“ Security Documents
” means the Pledge Agreements.
“ Security Document Excess
Amount ” has the meaning assigned to such term in
Section 3 of this Agreement.
“ Swap Agreement
Obligations ” means any amounts that, at the time in
question, are due and payable to any Swap Lender under any Swap
Contract.
“ Swap Amount ”
means with respect to each Swap Lender on each Calculation Date and
on each Determination Date, the Swap Termination Value under all
Swap Contracts which would be due and owing thereunder to such Swap
Lender on such Calculation Date or Determination Date if any such
Swap Contract were terminated on such date whether or not such Swap
Amount is actually due and owing on such date.
“ Swap Lender ”
means with respect to any Calculation Date or any Determination
Date, each Lender that is a party to a Swap Contract with the
Company or an Affiliate of the Company on such date.
8
“ Swap Contract ”
means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with
any related schedules, a “ Master Agreement ”),
including any such obligations or liabilities under any Master
Agreement.
“ Swap Termination
Value ” means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a
Lender).
“ Voting Stock ”
means, with respect to any corporation, any shares of stock of such
corporation whose holders are entitled under ordinary circumstances
to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency).
2.
Subject Guaranties
. If, after the occurrence and
during the continuance of a “Default” or “Event
of Default” under any Credit Agreement (as
“Default” or “Event of Default” is defined
in each Credit Agreement) any Lender shall at any time obtain any
payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) from any Guarantor pursuant to
a Subject Guaranty (each date on which a Lender receives any such
payment or recovery is herein called a “ Calculation
Date ”) in excess of its Proportionate Share calculated
as of such date of payments or other recoveries then or therewith
obtained by all Lenders with respect to the Subject Guaranties,
such Lender shall purchase from the other Lenders such
participation(s) in the Indebtedness (and interest thereon) of the
Company held by such other Lenders that is guaranteed pursuant to
such other Lenders’ Subject Guaranty or Subject Guaranties,
as shall be necessary to cause such purchasing Lender to share such
payment or other recovery ratably with such selling Lenders;
provided , however , that if all or any portion of
such payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded, and each
selling Lender shall repay to the purchasing Lender the purchase
price, to the ratable extent of such recovery, together with an
amount equal to such selling Lender’s ratable share
(according to the proportion of (x) the amount of such
selling
9
Lender’s required repayment to
the purchasing Lender to (y) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable
by the purchasing Lender in respect of the total amount so
recovered. Notwithstanding the foregoing, if a Swap Amount is
not due and owing on a Calculation Date or does not actually become
due and owing within 30 days of such Calculation Date, and as a
result of the inclusion of the Swap Amount in calculating a Swap
Lender’s Proportionate Share, such Swap Lender receives a
greater portion of any payment or other recovery from any Guarantor
than it would have if the Swap Amount had not been included in such
calculation (such amount is herein called a “ Subject
Guaranty Excess Amount ”), then such Swap Lender shall
immediately purchase from each other Lender such participation(s)
in the Indebtedness (and interest thereon) of the Company held by
such other Lender that is guaranteed pursuant to such other
Lender’s Subject Guaranty or Subject Guaranties in an amount
equal to such other Lender’s Proportionate Share as of such
Calculation Date (after being recalculated to exclude the Swap
Amount) of the Subject Guaranty Excess Amount plus such other
Lender’s Proportionate Share of any interest earned by the
Swap Lender on such Subject Guaranty Excess Amount.
3.
Security Documents
. If any Lender shall at any
time obtain any payment or other recovery (whether voluntary,
involuntary, or otherwise) under a Security Document (each date on
which a Lender receives any such payment or recovery is herein
called a “ Determination Date ”) in excess of
its Proportionate Share calculated as of such date of payments or
other recoveries then or therewith obtained by all Lenders under a
Security Document, such Lender shall purchase from the other
Lenders such participation(s) in the Indebtedness (and interest
thereon) of the Company held by such other Lenders that is secured
by the Security Documents, as shall be necessary to cause such
purchasing Lender to share such payment or other recovery ratably
with such selling Lenders; provided , however , that
if all or any portion of such payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase
shall be rescinded, and each selling Lender shall repay to the
purchasing Lender the purchase price, to the ratable extent of such
recovery, together with an amount equal to such selling
Lender’s ratable share (according to the proportion of (x)
the amount of such selling Lender’s required repayment to the
purchasing Lender to (y) the total amount so recovered from the
purchasing Len
