Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 14 contracts
Samples: Credit Agreement (Cco Holdings Capital Corp), Restatement Agreement (Charter Communications, Inc. /Mo/), Credit Agreement (Cco Holdings LLC)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”) shall at any time receive in respect of its Principal Balance any payment distribution of all any amount, including interest or part of the amounts owing to it hereunderother fees, or any interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)setoff, or otherwise), ) in a greater proportion than any such payment to or collateral distribution (if any) received by any other Lender, if any, Lender in respect of the amounts owing to such other Lender hereunderLender’s Principal Balance, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender’s Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Master Servicer and the Company agree that each Lender so purchasing a Loan (or interest therein) may exercise all rights of payment (including rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company, to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower Company hereunder (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender agrees promptly to notify the Borrower and Company, the Administrative Agent and the Funding Agents after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(c) If and to the extent, but without double counting, the Collateral Agent, the Administrative Agent or any Lender (the “Recipients”) shall be required for any reason to pay over to an Obligor or to any other Person any amount received from the Company under this Agreement, such amount shall be deemed not to have been received by the relevant Recipient but rather to have been retained by the Company and, accordingly, such Recipient shall have a claim against the Company for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 6 contracts
Samples: u.s. Receivables Loan Agreement (Huntsman International LLC), u.s. Receivables Loan Agreement, u.s. Servicing Agreement, u.s. Receivables Purchase Agreement (Huntsman International LLC), European Receivables Loan Agreement
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Benefitted Lender”) shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender and its Affiliates shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, such Affiliate or any branch or agency of any thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such LenderLender or any of its Affiliates, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 5 contracts
Samples: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If at any Lender time when there is more than one Obligee any Obligee (a “Benefited Lender”"Benefitted Obligee") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Secured Instrument(s), or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8.1(i), or otherwise), in a greater proportion than any such payment to or collateral received by by, any other LenderObligee, if any, in respect of the amounts owing to such other Lender Obligee's Secured Instrument(s), or interest thereon, or fees due to it hereunder, such Benefited Lender Benefitted Obligee shall purchase for cash from the other Lenders a participating interest in Obligee such portion of the amounts owing to each such other Lender hereunderObligee's Secured Instrument(s), or make such payment on account of such fees, or shall provide such other Lenders Obligee with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Benefitted Obligee to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersObligees; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBenefitted Obligee, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees, that each Obligee purchasing a portion of another Obligee's Secured Instrument(s) owing to it may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Obligee were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Obligee provided by law, each Lender Obligee shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly ex- pressly waived by Holdings and the Borrower Company to the extent permitted by applicable ap- plicable law, upon any amount Secured Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional provi- sional or final), in any currency, and any other credits, indebtedness in- debtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmaturedunma- tured, at any time held or owing by such Lender or any branch or agency thereof Obligee to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender Obligee agrees promptly to notify the Borrower Company and the Administrative Agent each other Obligee after any such setoff and application made by such Lenderthe Obligee, provided that the failure to give such notice shall not affect the validity va- lidity of such setoff and application.
Appears in 3 contracts
Samples: Secured Agreement (Ap-Agc LLC), Secured Agreement (Apollo Real Estate Advisors Ii L P), Secured Agreement (Apollo Real Estate Investment Fund Ii L P)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 3 contracts
Samples: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”) ), other than the Swingline Lender, with respect to any Swingline Loan or portion of Principal Balance relating to a Swingline Loan only, shall at any time receive in respect of its Principal Balance any payment distribution of all any amount, including interest or part of the amounts owing to it hereunderother fees, or any interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)setoff, or otherwise), ) in a greater proportion than any such payment to or collateral distribution (if any) received by any other Lender, if any, Lender in respect of the amounts owing to such other Lender hereunderLender’s Principal Balance, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender’s Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Master Servicer and the Company agree that each Lender so purchasing a Loan (or interest therein) may exercise all rights of payment (including rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company, to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower Company hereunder (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender agrees promptly to notify the Borrower and Company, the Administrative Agent and the Funding Agents after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(c) If and to the extent, but without double counting, the Collateral Agent, the Administrative Agent or any Lender (the “Recipients”) shall be required for any reason to pay over to an Obligor or to any other Person any amount received from the Company under this Agreement, such amount shall be deemed not to have been received by the relevant Recipient but rather to have been retained by the Company and, accordingly, such Recipient shall have a claim against the Company for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.
Appears in 3 contracts
Samples: u.s. Receivables Loan Agreement (Huntsman International LLC), u.s. Receivables Loan Agreement (Huntsman CORP), u.s. Receivables Loan Agreement (Huntsman CORP)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, unless otherwise agreed in writing by such Lender with the Borrower, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (Micron Technology Inc), Term Loan Credit Agreement (Micron Technology Inc), Term Loan Credit Agreement (Micron Technology Inc)
Adjustments; Setoff. (a) Except If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) any Loans and other amounts due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the extent proportion of (i) such Loans and other amounts due and payable to such Lender at such time to (ii) the aggregate amount of Loans and other amounts due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of Loans and other amounts due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Loans and other amounts owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Loans and other amounts owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of Loans and other amounts owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on account of Loans and other amounts owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that this Agreement expressly provides for the benefit of all such payments to shall be allocated to a particular Lender or shared by the Lenders ratably in accordance with the aggregate amount of Loans and other amounts then due and payable to the Lenders of a particular Classor owing (but not due and payable) to the Lenders, as the case may be, provided that:
(i) if any Lender (a “Benefited Lender”) shall receive any payment of all such participations or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if subparticipations are purchased and all or any portion of such excess the payment or benefits giving rise thereto is thereafter recovered from such Benefited Lenderrecovered, such purchase participations or subparticipations shall be rescinded, rescinded and the purchase price and benefits returned, restored to the extent of such recovery, but without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.23, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Section shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(b) In addition to any rights and remedies of the Lenders provided by lawLaw, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable lawLaw, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.24 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower , and the Administrative Agent after any such setoff set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 3 contracts
Samples: Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD)
Adjustments; Setoff. (a) Except to the extent that this Agreement or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLender, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender and their respective Affiliates shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwiseotherwise but after giving effect to any applicable period of grace), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any Affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, Lender or its Affiliate; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Beazer Homes Usa Inc), Credit Agreement (Beazer Homes Usa Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or Issuing Bank or to the Lenders of a particular Classand Issuing Banks, if any Lender or Issuing Bank (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or collateral received by any other LenderLender or Issuing Bank, if any, in respect of the amounts Obligations owing to such other Lender hereunderor Issuing Bank, such Benefited Lender shall purchase for cash from the other Lenders and Issuing Banks a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderand Issuing Bank, or shall provide such other Lenders and Issuing Banks with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the LendersLenders and Issuing Banks; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no extension of Loans that is permitted under Section 2.27 shall constitute a payment of any of such Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders and Issuing Banks provided by lawlaw and subject to the terms of the Guarantee and Collateral Agreement, each Lender and Issuing Bank shall have the right, unless otherwise agreed in writing by such Lender or Issuing Bank with the Borrower, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, such Issuing Bank, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender and Issuing Bank agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such LenderLender or Issuing Bank, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Micron Technology Inc), Credit Agreement (Micron Technology Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Benefitted Lender”) shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest; provided further, that to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender and its Affiliates shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, such Affiliate or any branch or agency of any thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such LenderLender or any of its Affiliates, provided provided, that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited "Benefitted Lender”") shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Adjustments; Setoff. (a) Except to the extent that this Agreement If, other than as expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Classset forth elsewhere herein, if any Lender (a “Benefited Lender”) shall receive obtain on account of the Committed Loans made by it any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarilyvoluntary, by set-offinvoluntary, pursuant to events or proceedings through the exercise of the nature referred to in Section 8(e)any right of setoff, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect excess of its Commitment Percentage of payments on account of the amounts owing to such other Lender hereunderCommitted Loans obtained by all the Lenders, such Benefited Lender shall forthwith (x) notify Agent of such fact, and (y) purchase for cash from the other Lenders a participating interest such participations in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, Committed Loans made by them as shall be necessary to cause such Benefited purchasing Lender to share the excess payment or benefits of such collateral ratably with each of the Lendersthem; providedPROVIDED, howeverHOWEVER, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited the purchasing Lender, such purchase shall to that extent be rescinded, rescinded and each other Lender shall repay to the purchasing Lender the purchase price and benefits returned, paid thereto together with an amount equal to such paying Lender's Commitment Percentage (according to the extent proportion of (i) the amount of such recoverypaying Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender, but without interestof any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Agent will keep records (which shall be conclusive and binding in the absence of demonstrable error), of participations purchased pursuant to this SECTION 11.7 and will in each case promptly notify the Lenders and Borrower following any such purchases. Any payments received after the Lenders have taken action pursuant to this SECTION 11.7 shall be allocated ratably among the Revolving Loans and the Swing Line Loans of all the Lenders.
(b) Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this SECTION 11.7 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to SECTION 11.7(d)) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.
(c) Nothing herein shall require any Lender to exercise any right of setoff or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of Borrower.
(d) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings Borrower or the Borrowerany other Person, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable lawBorrower, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), occurrence of an Event of Default to set off and appropriate setoff and apply against such amount any Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, whether matured or unmatured, at of Borrower to such Lender, any time held or amount owing by from such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as at or at any time after, the case happening of any of the above-mentioned events, and the aforesaid right of setoff may bebe exercised by such Lender against Borrower or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor of Borrower, or against anyone else claiming through or against, Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; PROVIDED, provided HOWEVER, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Borrower expressly agrees that to the extent Borrower makes a payment or payments and such payment or payments, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Indebtedness to the Lenders or part thereof intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made.
Appears in 2 contracts
Samples: Credit Agreement (BMC Industries Inc/Mn/), Credit Agreement (BMC Industries Inc/Mn/)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final, other than those deposits held on a Loan Party’s behalf composed of amounts held as payroll and taxes due thereon), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Cco Holdings LLC), Credit Agreement (Cco Holdings LLC)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall ------------------- at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(esubsection 7.1(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, being paid in respect of Loans being repaid simultaneously therewith or Loans required hereby to be paid proportionately such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Loan may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies remedies, of the Lenders provided by law, upon the occurrence of an Event of Default, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 2 contracts
Samples: Credit Agreement (Creditrust Corp), Credit Agreement (Creditrust Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6 or in connection with an Auction that is permitted under Section 2.28), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(i) or (j), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no purchase or assignment of Term Loans in connection with an Auction that is permitted under Section 2.28 or Section 9.6(f) (and no payment made or cancellation of such Term Loans in connection therewith) and no extension of Term Loans that is permitted under Section 2.27 shall constitute a payment of any of such Term Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders provided by lawlaw and subject to the terms of the Pledge and Security Agreement, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no extension of Revolving Commitments and Revolving Loans that is permitted under Section 2.27, shall constitute a payment of any of such Revolving Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders provided by lawlaw and subject to the terms of the Guarantee and Collateral Agreement, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLender, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender’s Obligations, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender’s Obligations, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Rotech Healthcare Inc), Credit Agreement (Rotech Healthcare Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no extension of Revolving Commitments and Revolving Loans that is permitted under Section 2.27, shall constitute a payment of any of such Revolving Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders provided by lawlaw and subject to the terms of the Guarantee and Collateral Agreement, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturityStated Maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLender, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8.1(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Escrow Credit Agreement (Charter Communications, Inc. /Mo/), Escrow Credit Agreement (Charter Communications, Inc. /Mo/)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender as contemplated in Section 13.6 or to the Lenders of a particular Classelsewhere herein or in any other Credit Document, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof as part of the exercise of remedies under this Agreement or any other Credit Document (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)11.5, or otherwise), in a greater proportion than any such payment to or such collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender’s Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender’s Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerCredit Parties, any such notice being expressly waived by Holdings the Borrower and the Borrower other Credit Parties to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower Credit Parties hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final) (other than any escrow, payroll, trust, tax, fiduciary, employee health and benefits, pension, 401(k), and pxxxx cash accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, then matured or unmatured, at any time held or and owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings the Borrower or the Borrower, as the case may beother Credit Parties. Each Lender agrees promptly to notify the Borrower Credit Parties and the Administrative Agent after any such setoff set-off and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 2 contracts
Samples: Credit Agreement (Surgery Partners, Inc.), Credit Agreement (Surgery Partners, Inc.)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Lender”) shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, upon the occurrence and during the continuation of any Event of Default, without prior notice to Holdings the Borrower or the Borrowerany other Loan Party, any such notice being expressly waived by Holdings and the Borrower Loan Parties to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower or any Loan Party hereunder or under any other Loan Document (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrowersuch Loan Party, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Trean Insurance Group, Inc.), Credit Agreement (Trean Insurance Group, Inc.)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to the Lenders under a particular Lender or to the Lenders of a particular ClassFacility, if any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of its Loans or the amounts Reimbursement Obligations owing to it hereunderit, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender's Loans or the amounts Reimbursement Obligations owing to such other Lender hereunderLender, or interest thereon, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender's Loan and/or of the amounts Reimbursement Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Imperial Holly Corp), Credit Agreement (Imperial Holly Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender’s Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender’s Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In Upon the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, (without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law), upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (Northwestern Corp), Credit Agreement (Northwestern Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLender, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender and their respective Affiliates shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise, but after giving effect to any applicable period of grace), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any Affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, Lender or its Affiliate; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 2 contracts
Samples: Credit Agreement (William Lyon Homes), Amendment and Restatement Agreement (William Lyon Homes)
Adjustments; Setoff. (a) Except to the extent that this Agreement If, other than as expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Classset forth elsewhere herein, if any Lender (a “Benefited Lender”) shall receive obtain on account of the Committed Loans made by it any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarilyvoluntary, by set-offinvoluntary, pursuant to events or proceedings through the exercise of the nature referred to in Section 8(e)any right of setoff, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect excess of its Commitment Percentage of payments on account of the amounts owing to such other Lender hereunderCommitted Loans obtained by all the Lenders, such Benefited Lender shall forthwith (x) notify Agent of such fact, and (y) purchase for cash from the other Lenders a participating interest such participations in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, Committed Loans made by them as shall be necessary to cause such Benefited purchasing Lender to share the excess payment or benefits of such collateral ratably with each of the Lendersthem; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited the purchasing Lender, such purchase shall to that extent be rescinded, rescinded and each other Lender shall repay to the purchasing Lender the purchase price and benefits returned, paid thereto together with an amount equal to such paying Lender’s Commitment Percentage (according to the extent proportion of (i) the amount of such recoverypaying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender, but without interestof any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Agent will keep records (which shall be conclusive and binding in the absence of demonstrable error), of participations purchased pursuant to this Section 11.7 and will in each case promptly notify the Lenders and Borrower following any such purchases. Any payments received after the Lenders have taken action pursuant to this Section 11.7 shall be allocated ratably among the Revolving Loans and the Swing Line Loans of all the Lenders.
(b) Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 11.7 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.7(d)) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.
(c) Nothing herein shall require any Lender to exercise any right of setoff or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of Borrower.
(d) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings Borrower or the Borrowerany other Person, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable lawBorrower, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), occurrence of an Event of Default to set off and appropriate setoff and apply against such amount any Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, whether matured or unmatured, at of Borrower to such Lender, any time held or amount owing by from such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as at or at any time after, the case happening of any of the above-mentioned events, and the aforesaid right of setoff may bebe exercised by such Lender against Borrower or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor of Borrower, or against anyone else claiming through or against, Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Borrower expressly agrees that to the extent Borrower makes a payment or payments and such payment or payments, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Indebtedness to the Lenders or part thereof intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made.
Appears in 1 contract
Samples: Second Amendment and Restatement Agreement (BMC Industries Inc/Mn/)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “"Benefited Lender”") ------------------- ---------------- shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(g), or otherwise), in a greater proportion than any -------------- such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is -------- thereafter recovered from such Benefited benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice -------- shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”"BENEFITED LENDER") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(eSECTION 7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, PROVIDED that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In Upon the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, (without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law), upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided ; PROVIDED that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Obligations, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Obligations, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.. 103 99
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “"Benefited Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In Upon the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, (without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law), upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of any of its Loans or L/C Participating Interests, as the amounts owing to it hereundercase may be, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in clause (f) of Section 8(e)9, or otherwise), ) in a greater proportion than any such payment to or and collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans or L/C Participating Interests, as the case may be, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans or L/C Participating Interests, as the case may be, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Lender so purchasing a portion of another Lender's Loans and/or L/C Participating Interests may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Lender were the direct holder of such portion. The Administrative Agent shall promptly give the Company notice of any set-off, provided that the failure to give such notice shall not affect the validity of such set-off.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon the filing of a petition under any amount becoming due and payable of the provisions of the federal bankruptcy code or amendments thereto, by Holdings or against; the making of an assignment for the benefit of creditors by; the application for the appointment, or the Borrower hereunder (whether at appointment, of any receiver of, or of any substantial portion of the stated maturityproperty of; the issuance of any execution against any substantial portion of the property of; the issuance of a subpoena or order, by acceleration in supplementary proceedings, against or otherwise), with respect to set any substantial portion of the property of; or the issuance of a warrant of attachment against any substantial portion of the property of; the Company to set-off and appropriate and apply against such amount any and all deposits (general or specialindebtedness, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, of the Company to such Lender, any amount owing from such Lender to the Company, at or at any time held after, the happening of any of the above mentioned events, and as security for such indebtedness, the Company hereby grants to each Lender a continuing security interest in any and all deposits, accounts or owing moneys of the Company then or thereafter maintained with such Lender, subject in each case to subsection 11.7(a) of this Agreement. The aforesaid right of set-off may be exercised by such Lender against the Company or against any branch or agency thereof to or trustee in bankruptcy, debtor in possession, assignee for the credit benefit of creditors, receiver or execution, judgment or attachment creditor of the account Company, or against anyone else claiming through or against the Company or such trustee in bankruptcy, debtor in possession, assignee for the benefit of Holdings creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the Borrowerfact that such right of set-off shall not have been exercised by such Lender prior to the making, as filing or issuance, or service upon such Lender of, or of notice of, any such petition; assignment for the case may bebenefit of creditors; appointment or 91 EXECUTION COPY application for the appointment of a receiver; or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower Company and the Administrative Agent after any such setoff set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 1 contract
Samples: Credit Agreement (CSK Auto Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefited Lender”") shall at any time receive any payment of all or part of the amounts any of its Loans or Reimbursement Obligations owing to it hereunderunder the Revolving Credit Commitment, or interest thereon, pursuant to a guarantee or otherwise, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), off or otherwise), in a greater proportion than any such payment to or and collateral received by any other Lender, if any, in respect of the amounts such other Lender's Loans or Reimbursement Obligations owing to such other Lender hereunderit under the Revolving Credit Commitment or interest thereon, such Benefited benefited Lender shall purchase for cash from the other Lenders a participating interest in Lender such portion of the amounts owing to each such other Lender hereunder, Lender's similar Loans or Reimbursement Obligations or shall provide such other Lenders Lender with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersLenders which hold the Revolving Credit Commitment; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Loans or Reimbursement Obligations may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such purchasing Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff set-off and application made by such Lender, provided provided, that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 1 contract
Samples: Revolving Credit Agreement (Advanced Fibre Communications Inc)
Adjustments; Setoff. (a) Except Notwithstanding Section 8.09(b), if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided prohibited by law, each Lender shall have with the right, without prior notice to Holdings or written consent of the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise)Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, ) at any time held or and other indebtedness at any time owing by such Lender or any branch or agency thereof such Affiliate to or for the credit or the account of Holdings any Loan Party against any or all of the Borrowerobligations of the Borrower and the other Loan Parties now or hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document for amounts then due and owing and although such obligations may be unmatured; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Bank, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as the case may beto which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent promptly after any such setoff and application made by such Lender, application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Penn National Gaming Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerBorrowers, any such notice being expressly waived by Holdings and the Borrower Borrowers to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder Borrowers (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness Indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any Affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may beBorrowers. Each Lender agrees promptly to notify the Borrower Borrowers and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits Benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings the Borrower or the BorrowerParent, any such notice being expressly waived by Holdings the Borrower and the Borrower Parent to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings the Borrower or the Borrower Parent hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings the Borrower or the BorrowerParent, as the case may be. Each Lender agrees promptly to notify the Borrower or the Parent, as applicable, and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or Issuing Bank or to the Lenders of a particular Classand Issuing Banks, if any Lender or Issuing Bank (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or collateral received by any other LenderLender or Issuing Bank, if any, in respect of the amounts Obligations owing to such other Lender hereunderor Issuing Bank, such Benefited Lender shall purchase for cash from the other Lenders and Issuing Banks a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderand Issuing Bank, or shall provide such other Lenders and Issuing Banks with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the LendersLenders and Issuing Banks; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no extension of Loans that is permitted under Section 2.23 shall constitute a payment of any of such Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders and Xxxxxxx Xxxxx provided by law, each Lender and Issuing Bank shall have the right, unless otherwise agreed in writing by such Lender or Issuing Bank with the Borrower, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, such Issuing Bank, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender and Issuing Bank agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such LenderLender or Issuing Bank, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except Notwithstanding Section 8.09(b), if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided prohibited by law, each Lender shall have with the right, without prior notice to Holdings or written consent of the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise)Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, ) at any time held or and other indebtedness at any time owing by such Lender or any branch or agency thereof such Affiliate to or for the credit or the account of Holdings any Loan Party against any or all of the Borrowerobligations of the Borrower and the other Loan Parties now or hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document for amounts then due and owing and although such obligations may be unmatured; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Bank, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as the case may beto which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent promptly after any such setoff and application made by such Lender, application; provided that the failure to give such notice shall not affect the validity of such setoff and application.. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. 156
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender Revolving Credit Loans or to Competitive Loans, as the Lenders of a particular Classcase may be, if any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderany category of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of an Event of Default, each Lender shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower Company hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender agrees promptly to notify Holdings, the Borrower Company and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e11(e) or (f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Pik Bridge Loan Agreement (Rockwood Holdings, Inc.)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”"BENEFITTED LENDER") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e10(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; providedPROVIDED, howeverHOWEVER, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff set-off and application made by such Lender, provided PROVIDED that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 1 contract
Samples: Revolving Credit Agreement (Aftermarket Technology Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassCredit Facility, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender’s Obligations, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender’s Obligations, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, if an Event of Default shall have occurred and be continuing, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof (but in any event excluding payroll, tax, trust, and xxxxx cash accounts maintained in the ordinary course of business) to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Local Insight Yellow Pages, Inc.)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited "Benefitted Lender”") shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.. 70
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender Revolving Credit Loans, Competitive Loans or to Fronted Loans, as the Lenders of a particular Classcase may be, if any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderany category of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Each Borrower agrees that each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of an Event of Default, each Lender shall have the right, without prior notice to Holdings or the any Borrower, any such notice being expressly waived by Holdings and the each Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the any Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the any Borrower, as the case may be. Each Lender agrees promptly to notify Holdings, the Borrower Company and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to the Lenders under a particular Lender or to the Lenders of a particular ClassFacility, if any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of its Loans or the amounts Reimbursement Obligations owing to it hereunderit, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender's Loans or the amounts Reimbursement Obligations owing to such other Lender hereunderLender, or interest thereon, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender's Loan and/or of the amounts Reimbursement Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
(c) Notwithstanding the foregoing, no Lender shall institute or commence any proceeding to collect any amounts owed to it hereunder or shall otherwise exercise any remedies (including setoff) with respect to the amounts owed to it unless such Lender shall provide at least five Business Days' (or such shorter period as may be consented to by the Collateral Agent) prior written notice thereof to the Collateral Agent.
Appears in 1 contract
Samples: Restructuring Credit Agreement (Imperial Sugar Co /New/)
Adjustments; Setoff. (a) Except to the extent that this Agreement If, other than as expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Classset forth elsewhere herein, if any Lender (a “Benefited Lender”) shall receive obtain on account of the Committed Loans made by it any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarilyvoluntary, by set-offinvoluntary, pursuant to events or proceedings through the exercise of the nature referred to in Section 8(e)any right of setoff, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect excess of its Commitment Percentage of payments on account of the amounts owing Committed Loans obtained by all the Lenders, such
(b) Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 11.7 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.7(d)) with respect to such other participation as fully as if such Lender hereunder, were the direct creditor of Borrower in the amount of such Benefited participation.
(c) Nothing herein shall require any Lender shall purchase for cash from the other Lenders a participating interest in such portion to exercise any right of the amounts owing to each such other Lender hereunder, setoff or similar rights or shall provide such other Lenders with affect the right of any Lender to exercise, and retain the benefits of exercising, any such collateral, as shall be necessary right with respect to cause such Benefited Lender to share the excess payment any other Indebtedness or benefits obligation of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interestBorrower.
(bd) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings Borrower or the Borrowerany other Person, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable lawBorrower, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), occurrence of an Event of Default to set off and appropriate setoff and apply against such amount any Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, whether matured or unmatured, at of Borrower to such Lender, any time held or amount owing by from such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as at or at any time after, the case happening of any of the above-mentioned events, and the aforesaid right of setoff may bebe exercised by such Lender against Borrower or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor of Borrower, or against anyone else claiming through or against, Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided,
(e) Borrower expressly agrees that to the extent Borrower makes a payment or payments and such payment or payments, provided that or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the failure to give such notice shall not affect the validity extent of such setoff payment or repayment, the Indebtedness to the Lenders or part thereof intended to be satisfied shall be revived and applicationcontinued in full force and effect as if said payment or payments had not been made.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”"BENEFITTED LENDER") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Credit Extensions, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(eSECTION 7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Credit Extensions, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, PROVIDED that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder and under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), ) in any currency, and any other credits, indebtedness or claims, in any currency, in each case case, whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided ; PROVIDED that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”) at any time shall receive any payment of all or part of the amounts owing to it hereunderits Loans of a certain Class, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(esubsection 12(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other LenderLender having Loans of such Class, if any, in respect of the amounts owing to such other Lender hereunderLender’s Loans of such Class, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in having Loans of such Class such portion of the amounts owing to each such other Lender hereunderLender’s Loans of such Class, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersLenders having Loans of such Class; and if after taking into account such sharing the Benefited Lender continues to have access to additional funds of or collateral granted by a Borrower for application on account of its debt in respect of Loans of such Class, then the Benefited Lender shall use such funds or collateral to reduce indebtedness of such Borrower held by it in respect of Loans of such Class and share such payments and the benefits of such collateral with the other Lenders having Loans of such Class; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Each Borrower agrees that each Lender so purchasing a portion of another Lender’s Loans may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the any Borrower, any such notice being expressly waived by Holdings and the each Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the a Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch branch, agency or agency (to the extent permitted by applicable law) banking affiliate thereof to or for the credit or the account of Holdings or the such Borrower, as the case may be. Each Lender agrees promptly to notify the such Borrower and the applicable Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Reebok International LTD)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerBorrowers, any such notice being expressly waived by Holdings and the Borrower Borrowers to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder Borrowers (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness Indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any Affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may beBorrowers. Each Lender agrees promptly to notify the Borrower Borrowers and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender Bank (a “Benefited Lender”"BENEFITED BANK") shall at any time receive any payment of all or any part of the amounts owing to it hereunderits Advances, or interest thereon, or receive any collateral Collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e)8.6, or otherwise), ) in a greater proportion than any such payment to or collateral and Collateral received by any other LenderBank, if any, in respect of the amounts owing to such other Lender hereunderBank's Advances, or interest therein, such Benefited Lender Bank shall purchase for cash from the other Lenders a participating interest in Banks such portion of the amounts owing to each such other Lender hereunderBank's Advances, or shall provide such other Lenders Banks with the benefits of any such collateralCollateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Bank to share the excess payment or benefits of such collateral Collateral or proceeds ratably with each of the LendersBanks; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBank, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Bank so purchasing a portion of another Bank's Advances may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Banks provided by law, upon the occurrence of an Event of Default and acceleration of the obligations owing in connection with this Agreement, or at any time upon the occurrence and during the continuance of an Event of Default under Section 8.1, each Lender Bank shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (indebtedness or account, whether matured or unmatured, general or special, time of the Borrower to such Bank, any amount owing from such Bank to the Borrower, at, or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing after, the happening of any of the above mentioned events. To the extent permitted by Applicable Laws, the aforesaid right of setoff may be exercised by such Lender Bank against the Borrower or against any branch or agency thereof to or custodian, debtor in possession, assignee for the credit benefit of creditors, receiver, liquidator, rehabilitator or the account execution, judgment or attachment creditor of Holdings or the Borrower, as or against anyone else claiming through or against the case may beBorrower or such custodian, debtor in possession, assignee for the benefit of creditors, receiver, liquidator, rehabilitator or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Bank prior to the making, filing or issuance, or service upon such Bank of, or of notice of, any insolvency, liquidation or rehabilitation, petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, liquidator or rehabilitator or issuance of execution, subpoena, order or warrant. Each Lender Bank agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such LenderBank, provided that the failure to give such notice shall not affect the validity of such setoff set-off and application.
(c) The provisions of Section 11.11(a) shall remain operative and in full force and effect regardless of the expiration of the term of the Commitment or the Loan Documents, the consummation of the transactions contemplated hereby and thereby, the repayment of all or a portion of the Loans, the payment in full of the Notes, the invalidity or unenforceability of any term or provision of the Loan Documents, or any investigation made by or on behalf of the Administrative Agent, any Bank or the Borrower or the contentor accuracy of any representation or warranty made by the Borrower under any Loan Document or any other document contemplated hereby. The provisions of Section 11.11(b) shall remain operative and in full force and effect regardless of the repayment of a portion of the Loans, the invalidity or unenforceability of any term or provision of the Loan Documents, or any investigation made by or on behalf of the Administrative Agent, any Bank or the Borrower or the content or accuracy of any representation or warranty made by the Borrower under any Loan Document or any other document contemplated hereby.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amerus Life Holdings Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender Purchaser (a “Benefited Lender”"Benefitted Purchaser") shall at any time receive in respect of its Series 2000-1 Purchaser Invested Amount any payment distribution of all principal, interest, Commitment Fees or part of the amounts owing to it hereunderother fees, or any interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)setoff, or otherwise), ) in a greater proportion than any such payment to or collateral distribution received by any other LenderPurchaser, if any, in respect of the amounts owing to such other Lender hereunderPurchaser's Series 2000-1 Purchaser Invested Amount, or interest thereon, such Benefited Lender Benefitted Purchaser shall purchase for cash from the other Lenders a participating interest in Purchasers such portion of the amounts owing to each such other Lender hereunderPurchaser's interest in the VFC Certificates, or shall provide such other Lenders Purchasers with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Benefitted Purchaser to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersPurchasers; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBenefitted Purchaser, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Purchaser so purchasing a VFC Beneficial Interest may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Purchaser were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Purchasers provided by law, each Lender Purchaser shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings the Company hereunder or under the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), VFC Certificates to set off setoff and appropriate and apply 71 76 against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof Purchaser to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender Purchaser agrees promptly to notify the Borrower Company and the Administrative Agent after any such setoff and application made by such Lender, Purchaser; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Pooling Agreement (Ingram Micro Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “"Benefited Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, right (without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law), upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loan, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in clause (g) of Section 8(e)7.1, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLenders' Loan, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangements and agrees that each Lender so purchasing a portion of another Lender's Loan may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon upon
(i) the filing of a petition under any amount becoming due and payable of the provisions of the federal bankruptcy act or amendments thereto, by Holdings or against;
(ii) the making of an assignment for the benefit of creditors by;
(iii) the application for the appointment, or the appointment, of any receiver of, or of any of the property of;
(iv) the issuance of any execution against any of the property of;
(v) the issuance of a subpoena or order, in supplementary proceedings, against or with respect to any of the property of; and/or
(vi) or the issuance of a warrant of attachment against any of the property of; Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or specialindebtedness, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, of Borrower to such Lender, any amount owing from such Lender to Borrower, at or at any time held or owing after, the happening of any of the above-mentioned events, and the aforesaid right of set off may be exercised by such Lender against Borrower or against any branch or agency thereof to or trustee in bankruptcy, debtor in possession, assignee for the credit benefit of creditors, receiver, or the account execution, judgment or attachment creditor of Holdings or the Borrower, as or against anyone else claiming through or against Borrower or such trustee in bankruptcy, debtor in possession, assignee for the case may bebenefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set off shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition; assignment for the benefit of creditors; appointment or application for the appointment of a receiver; or issuance of execution, subpoena or order of warrant. Each Lender agrees promptly to notify the Borrower Borrower, Agent and the Administrative Agent after any such setoff set off and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff set off and application. The proceeds of any set off or application pursuant to this subsection (b) of Section 10.8 shall be distributed in accordance with the preceding subsection (a).
Appears in 1 contract
Samples: Revolving Loan Agreement (Health & Retirement Properties Trust)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”"BENEFITED LENDER") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans and Credit-Linked Deposits, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(eSECTION 7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans and Credit-Linked Deposits, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans and Credit-Linked Deposits, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, PROVIDED that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In Upon the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, (without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law), upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify 91 the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided ; PROVIDED that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Adjustments; Setoff. (a) Except If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (i) any Loans and other amounts due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the extent proportion of (x) such Loans and other amounts due and payable to such Lender at such time to (y) the aggregate amount of Loans and other amounts due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of Loans and other amounts due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (ii) Loans and other amounts owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the amount of such Loans and other amounts owing (but not due and payable) to such Lender at such time to (y) the aggregate amount of Loans and other amounts owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payment on account of Loans and other amounts owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact and (B) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall be equitable so that this Agreement expressly provides for the benefit of all such payments to shall be allocated to a particular Lender or shared by the Lenders ratably in accordance with the aggregate amount of Loans and other amounts then due and payable to the Lenders of a particular Classor owing (but not due and payable) to the Lenders, as the case may be, provided that:
(i) if any Lender (a “Benefited Lender”) shall receive any payment of all such participations or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if subparticipations are purchased and all or any portion of such excess the payment or benefits giving rise thereto is thereafter recovered from such Benefited Lenderrecovered, such purchase participations or subparticipations shall be rescinded, rescinded and the purchase price and benefits returned, restored to the extent of such recovery, but without interest; and
(ii) the provisions of this Section 10.8(a) shall not be construed to apply to (x) any payment made by or on behalf of the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.19, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or participant, other than an assignment to the Company or any Subsidiary or other Affiliate thereof (as to which the provisions of this Section 10.8(a) shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(b) In addition to any rights and remedies of the Lenders provided by lawLaw, each Lender shall have the right, without prior notice to Holdings or the BorrowerBorrowers, any such notice being expressly waived by Holdings and the Borrower Borrowers to the extent permitted by applicable lawLaw, upon any amount becoming due and payable by Holdings or the Borrower Borrowers hereunder (whether at the stated maturity, by acceleration or otherwise)) and not paid when due, to set set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the BorrowerBorrowers; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.20 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) such Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender as the case may beto which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower Borrowers, as the case may be, and the Administrative Agent after any such setoff set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff set-off and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement If, other than as expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Classset forth elsewhere herein, if any Lender (a “Benefited Lender”) shall receive obtain on account of the Loans made by it any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarilyvoluntary, by set-offinvoluntary, pursuant to events or proceedings through the exercise of the nature referred to in Section 8(e)any right of setoff, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect excess of its Commitment Percentage of payments on account of the amounts owing to such other Lender hereunderLoans obtained by all the Lenders, such Benefited Lender shall forthwith (x) notify Agent of such fact, and (y) purchase for cash from the other Lenders a participating interest such participations in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, Loans made by them as shall be necessary to cause such Benefited purchasing Lender to share the excess payment or benefits of such collateral ratably with each of the Lendersthem; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited the purchasing Lender, such purchase shall to that extent be rescinded, rescinded and each other Lender shall repay to the purchasing Lender the purchase price and benefits returned, paid thereto together with an amount equal to such paying Lender's Commitment Percentage (according to the extent proportion of (i) the amount of such recoverypaying Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender, but without interestof any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Agent will keep records (which shall be conclusive and binding in the absence of demonstrable error), of participations purchased pursuant to this Section 11.6 and will in each case promptly notify the Lenders and Borrower following any such purchases. Any payments received after the Lenders have taken action pursuant to this Section 11.6 shall be allocated ratably among the Loans of all the Lenders.
(b) Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 11.6 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.6(d)) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.
(c) Nothing herein shall require any Lender to exercise any right of setoff or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of Borrower.
(d) In addition to any rights and remedies of the Lenders provided by law, each Lender shall (notwithstanding the provisions of Section 362 of the Bankruptcy Code, without any application, motion or notice to, or order from, the Bankruptcy Court) have the rightright upon the occurrence of an Event of Default, without prior notice subject to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower giving Required Notice pursuant to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise)Section 9.1, to set off and appropriate setoff and apply against such amount any Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, whether matured or unmatured, at of Borrower to such Lender, any time held or amount owing by from such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as at or at any time after, the case may behappening of any of the above-mentioned events. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice (other than the Required Notice pursuant to Section 9.1) shall not affect the validity of such setoff and application.
(e) Borrower expressly agrees that to the extent Borrower makes a payment or payments and such payment or payments, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Indebtedness to the Lenders or part thereof intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular If at any time when there is more than one Lender or to the Lenders of a particular Class, if any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Note(s), or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8.1(i), or otherwise), in a greater proportion than any such payment to or collateral received by by, any other Lender, if any, in respect of the amounts owing to such other Lender Lender's Note(s), or interest thereon, or fees due to it hereunder, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in Lender such portion of the amounts owing to each such other Lender hereunderLender's Note(s), or make such payment on account of such fees, or shall provide such other Lenders Lender with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees, that each Lender purchasing a portion of another Lender's Note(s) owing to it may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Lender provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount Secured Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender agrees promptly to notify the Borrower Company and the Administrative Agent each other Lender after any such setoff and application made by such the Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Secured Note Agreement (Atlantic Gulf Communities Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender Purchaser (a “Benefited Lender”"Benefitted Purchaser") shall at any time receive in respect of its Series 1999-A Purchaser Invested Amount any payment distribution of all principal, interest, Commitment Fees or part of the amounts owing to it hereunderother fees, or any interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)setoff, or otherwise), ) in a greater proportion than any such payment to or collateral distribution received by any other LenderPurchaser, if any, in respect of the amounts owing to such other Lender hereunderPurchaser's Series 1999-A Purchaser Invested Amount, or interest thereon, such Benefited Lender Benefitted Purchaser shall purchase for cash from the other Lenders a participating interest in Purchasers such portion of the amounts owing to each such other Lender hereunderPurchaser's interest in the VFC Certificates, or shall provide such other Lenders Purchasers with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Benefitted Purchaser to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersPurchasers; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBenefitted Purchaser, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Purchaser so purchasing a portion of the VFC Certificate holders' Interest may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Purchaser were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Purchasers provided by law, each Lender Purchaser shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings the Company hereunder or under the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), VFC Certificates to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof Purchaser to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender Purchaser agrees promptly to notify the Borrower Company and the Administrative Agent after any such setoff and application made by such Lender, Purchaser; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Pooling Agreement (American Axle & Manufacturing Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefited Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Revolving Loans, its participations in Letters of Credit, or interest thereon, or fees, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Revolving Loans, its participations in Letters of Credit, or interest thereon, or fees, such Benefited benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Revolving Loans, participations in Letters of Credit, or fees, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Revolving Loans or its participations in Letters of Credit may exercise all rights of payment (including rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, exercisable upon the occurrence and during the continuance of an Event of Default, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount the Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, claims in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof or bank controlling such Lender to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quiksilver Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans or Unpaid Reimbursement Obligations, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans or Unpaid Reimbursement Obligations, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans and Unpaid Reimbursement Obligations, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest, unless the Lender from which such payment is recovered is required to pay interest thereon, in which case each Lender returning funds to such Lender shall pay its pro rata share of such interest.
(b) In addition to any other rights and remedies of the Lenders provided by law, and regardless of the adequacy of any collateral, if any Event of Default shall be continuing, each Lender shall have the rightis authorized at any time and from time to time, without prior notice to Holdings or the Borrower, any such notice being expressly irrevocably waived by Holdings and the Borrower to the fullest extent permitted by law, to set off and apply, to the fullest extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, ) at any time held or by, and other indebtedness at any time owing by by, such Lender or any branch or agency thereof to or for the credit or the account of Holdings the Borrower against any and all Obligations owing to such Lender, now or at any time hereafter created, arising or existing, irrespective of whether or not the Borrower, as the case Administrative Agent or such Lender shall have made demand under this Credit Agreement or any other Loan Document and although such Obligations may bebe contingent or unmatured. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff set-off and application made by such Lender; provided, provided however, that the failure to give any such notice shall not affect the validity of such setoff set-off and application. The rights of each Lender under this Section 15 are in addition to all of the other rights and remedies (including other rights of set-off) which such Lender may have.
Appears in 1 contract
Samples: Revolving Credit Agreement (United States Cellular Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, Borrower any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Advanced Communications Group Inc/De/)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLender, if any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Obligations, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Obligations, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "Benefitted Lender”") at any time shall receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(esubsection 10(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; and if after taking into account such sharing the Benefitted Lender continues to have access to additional funds of or collateral granted by a Borrower for application on account of its debt, then the Benefitted Lender shall use such funds or collateral to reduce indebtedness of such Borrower held by it and share such payments and the benefits of such collateral with the other Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Each Borrower agrees that each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the any Borrower, any such notice being expressly waived by Holdings and the each Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the a Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch branch, agency or agency (to the extent permitted by applicable law) banking affiliate thereof to or for the credit or the account of Holdings or the such Borrower, as the case may be. Each Lender agrees promptly to notify the such Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Reebok International LTD)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "Benefitted Lender”") ------------------- ----------------- shall at any time receive any payment of all or part of the amounts owing to it hereunderits Credit Extensions, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(f), or otherwise), in a greater proportion -------------- than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Credit Extensions, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or -------- benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each No Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, sums at any time held credited or owing by such Lender or any branch or agency thereof due from the Lenders to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and only the Administrative Agent after may apply any such setoff and application made by such Lender, provided that deposit or other sum to or set them off against the failure to give such notice shall not affect the validity of such setoff and applicationObligations.
Appears in 1 contract
Samples: Credit Agreement (Four Media Co)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “"Benefited Lender”") shall at any time receive any payment of all or part of the amounts its Post-Petition Obligations owing to it hereunderit, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e9.1(h), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts such other Lender's Post- Petition Obligations owing to such other Lender hereunderLender, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts each such other Lender's Post-Petition Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest; provided, however, that nothing contained in this Section shall (i) apply to any payments, collateral or setoffs received by the Incremental DIP Lenders with respect to the Incremental DIP Loans, or (ii) alter or modify the order of payments specified in Section 2.9.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
(c) Notwithstanding the foregoing, no Lender shall institute or commence any proceeding to collect any amounts owed to it hereunder or shall otherwise exercise any remedies (including setoff) with respect to the amounts owed to it unless such Lender shall provide at least five Business Days' (or such shorter period as may be consented to by the Collateral Agent) prior written notice thereof to the Collateral Agent.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Lender”"BENEFITTED LENDER") shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 8, receive any payment of all or part of the amounts Obligations owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; providedPROVIDED, howeverHOWEVER, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings Holdco or the Borrower, any such notice being expressly waived by Holdings Holdco and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings Holdco or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings Holdco or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided ; PROVIDED that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6 or in connection with an auction that is permitted under Section 2.13(c)), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no purchase of Term Loans in connection with an Auction that is permitted under Section 2.13(c) (and no payment made or cancellation of such Term Loans in connection therewith) and no extension of Term Loans that is permitted under Section 2.27 shall constitute a payment of any of such Term Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders provided by lawlaw and subject to the terms of the Guarantee and Collateral Agreement, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6 or in connection with an Auction that is permitted under Section 2.28), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(i) or (j), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower . Notwithstanding anything to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwisecontrary contained in this Section 9.7(a), to set off no purchase or assignment of Term Loans in connection with an Auction that is permitted under Section 2.28 or Section 9.6(f) (and appropriate and apply against such amount any and all deposits (general no payment made or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity cancellation of such setoff Term Loans in connection therewith) and applicationno extension of Term Loans that is permitted under Section 2.27 shall constitute a payment of any of such Term Loans for purposes of this Section 9.7.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides or permits for payments to be allocated to a particular Lender or Issuing Bank or to the Lenders of a particular Classand Issuing Banks, if any Lender or Issuing Bank (a “Benefited Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment or participation made pursuant to Section 9.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or collateral received by any other LenderLender or Issuing Bank, if any, in respect of the amounts Obligations owing to such other Lender hereunderor Issuing Bank, such Benefited Lender shall purchase for cash from the other Lenders and Issuing Banks a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderand Issuing Bank, or shall provide such other Lenders and Issuing Banks with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the LendersLenders and Issuing Banks; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Notwithstanding anything to the contrary contained in this Section 9.7(a), no extension of Loans that is permitted under Section 2.23 shall constitute a payment of any of such Loans for purposes of this Section 9.7.
(b) In addition to any rights and remedies of the Lenders and Issuing Banks provided by law, each Lender and Issuing Bank shall have the right, unless otherwise agreed in writing by such Lender or Issuing Bank with the Borrower, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, such Issuing Bank, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender and Issuing Bank agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such LenderLender or Issuing Bank, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunderit, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender Purchaser (a “Benefited Lender”"Benefitted Purchaser") shall at any time receive in respect of its Series 1997-A Purchaser Invested Amount any payment distribution of all principal, interest, Commitment Fees or part of the amounts owing to it hereunderother fees, or any interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)setoff, or otherwise), ) in a greater proportion than any such payment to or collateral distribution received by any other LenderPurchaser, if any, in respect of the amounts owing to such other Lender hereunderPurchaser's Series 1997-A Purchaser Invested Amount, or interest thereon, such Benefited Lender Benefitted Purchaser shall purchase for cash from the other Lenders a participating interest in Purchasers such portion of the amounts owing to each such other Lender hereunderPurchaser's interest in the VFC Certificates, or shall provide such other Lenders Purchasers with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Benefitted Purchaser to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersPurchasers; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBenefitted Purchaser, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Purchaser so purchasing a portion of the VFC Certificate holders' Interest may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Purchaser were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Purchasers provided by law, each Lender Purchaser shall have the Series 1997-A Supplement right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings the Company hereunder or under the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), VFC Certificates to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof Purchaser to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender Purchaser agrees promptly to notify the Borrower Company and the Administrative Agent after any such setoff and application made by such Lender, Purchaser; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Pooling Agreement (American Axle & Manufacturing Holdings Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of under a particular ClassFacility, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerBorrowers, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness Indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower Borrowers and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e11(e) or (f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In After the occurrence and during the continuance of an Event of Default, in addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Rockwood Specialties Group Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender Purchaser (a “Benefited Lender”"Benefitted Purchaser") shall at any time receive in respect of its Series 1997-2 Purchaser Invested Amount any payment distribution of all principal, interest, Commitment Fees or part of the amounts owing to it hereunderother fees, or any interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)setoff, or otherwise), ) in a greater proportion than any such payment to or collateral distribution received by any other LenderPurchaser, if any, in respect of the amounts owing to such other Lender hereunderPurchaser's Series 1997-2 Purchaser Invested Amount, or interest thereon, such Benefited Lender Benefitted Purchaser shall purchase for cash from the other Lenders a participating interest in Purchasers such portion of the amounts owing to each such other Lender hereunderPurchaser's interest in the VFC Certificates, or shall provide such other Lenders Purchasers with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Benefitted Purchaser to share the excess payment or benefits of such collateral or proceeds ratably Series 1997-2 Supplement with each of the LendersPurchasers; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBenefitted Purchaser, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees that each Purchaser so purchasing a portion of the VFC Certificateholders' Interest may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Purchaser were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Purchasers provided by law, each Lender Purchaser shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings the Company hereunder or under the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), VFC Certificates to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof Purchaser to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender Purchaser agrees promptly to notify the Borrower Company and the Administrative Agent after any such setoff and application made by such Lender, Purchaser; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Pooling Agreement (Lifestyle Furnishings International LTD)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender Bank (a “Benefited Lender”"benefitted Bank") shall at any time receive any payment of all or part of any of the amounts Loans or the Reimbursement Obligations owing to it hereunderit, or interest thereon, pursuant to a guarantee or otherwise (including, without limitation, by way of setoff pursuant to the Subsidiary Guarantee), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), setoff or otherwise), in a greater proportion than any such payment to or and collateral received by any other LenderBank, if any, in respect of such other Bank's Loans or the amounts Reimbursement Obligations owing to such other Lender hereunderit or interest thereon, such Benefited Lender benefitted Bank shall purchase for cash from the other Lenders a participating interest in Banks such portion of the amounts owing to each such other Lender hereunderBank's Loans or the Reimbursement Obligations owing to such other Bank, or shall provide such other Lenders Banks with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender benefitted Bank to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersBanks; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lenderbenefitted Bank, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Toy Biz agrees that each Bank so purchasing a portion of another Bank's Loans or Reimbursement Obligations may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such purchasing Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Banks provided by law, upon both the occurrence of an Event of Default and acceleration of the obligations owing in connection with this Agreement, each Lender Bank shall have the right, without prior notice to Holdings or the BorrowerToy Biz, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate setoff and apply against such amount any and all deposits (general or specialindebtedness, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, of Toy Biz to such or any other Bank, any amount owing from such Bank to Toy Biz at, or at any time held or owing after, the happening of both of the above mentioned events, and such right of setoff may be exercised by such Lender Bank against Toy Biz or against any branch or agency thereof to or trustee in bankruptcy, debtor in possession, assignee for the credit benefit of creditors, receiver, custodian or execution, judgment or attachment creditor of Toy Biz, or against anyone else claiming through or against Toy Biz or such trustee in bankruptcy, debtor in possession, assignee for the account benefit of Holdings creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the Borrowerfact that such right of setoff shall not have been exercised by such Bank prior to the making, filing or issuance, or service upon such Bank of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Bank agrees promptly to notify Toy Biz, as the case may be. Each Lender agrees promptly to notify the Borrower , and the Administrative Agent after any such setoff and application made by such LenderBank, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Toy Biz Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefited Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, its participations in Letters of Credit, or interest thereon, or fees, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other applicable Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, its participations in Letters of Credit, or interest thereon, or fees, such Benefited benefited Lender shall purchase for cash from the such other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, participations in Letters of Credit, or fees, or shall provide such other Lenders Lender with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the such other Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Quiksilver agrees that each Lender so purchasing a portion of another Lender's Loans or its participations in Letters of Credit may exercise all rights of payment (including rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, exercisable upon the occurrence and during the continuance of an Event of Default, without prior notice to Holdings or the BorrowerBorrowers, any such notice being expressly waived by Holdings and the Borrower Borrowers to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount the Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, claims in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof or bank controlling such Lender to or for the credit or the account of Holdings or the Borrower, as the case may beQuiksilver. Each Lender agrees promptly to notify the Borrower and the Administrative Agent Quiksilver after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Quiksilver Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited Lender”"BENEFITTED LENDER") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Credit Extensions, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(eSECTION 7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Credit Extensions, or interest thereon, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, PROVIDED that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower, Heat Holdings II or the BorrowerParent, any such notice being expressly waived by each Borrower, Heat Holdings II and the Borrower Parent to the extent permitted by applicable law, upon any amount becoming due and payable by the Borrower, Heat Holdings II or the Borrower Parent hereunder and under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), ) in any currency, and any other credits, indebtedness or claims, in any currency, in each case case, whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, Heat Holdings II or the BorrowerParent, as the case may be. Each Lender agrees promptly to notify the Borrower Borrower, Heat Holdings II or the Parent, as applicable, and the Administrative Agent after any such setoff and application made by such Lender, provided ; PROVIDED that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "Benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e)SECTION 8.1(h) hereof, or otherwise), ) in a greater proportion than any such payment to or and collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the all Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Borrower agrees that each Lender so purchasing a portion of another Lender's Loan may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion. Agent shall promptly give Borrower notice of any setoff, provided that the failure to give such notice shall not affect the validity of such setoff.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, to the extent permitted by law, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon the filing of a petition under any amount becoming due and payable of the provisions of the United States Bankruptcy Code or amendments thereto, by Holdings or against; the making of an assignment for the benefit of creditors by; the application for the appointment, or the Borrower hereunder (whether at appointment, of any receiver of, or of any of the stated maturityproperty of; the issuance of any execution against any of the property of; the issuance of a subpoena or order, by acceleration in supplementary proceedings, against or otherwise)with respect to any of the property of; or the issuance of a warrant of attachment against any of the property of; Borrower, to set off and appropriate setoff and apply against such amount any and all deposits (general or specialIndebtedness, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, of Borrower to such Lender, any amount owing from such Lender to Borrower, at or at any time held or owing after, the happening of any of the above mentioned events, and the aforesaid right of setoff may be exercised by such Lender against Borrower or against any branch or agency thereof to or trustee in bankruptcy, debtor in possession, assignees for the credit benefit of creditors, received or the account execution, judgment or attachment creditor of Holdings or the Borrower, as or against anyone else claiming through or against Borrower or such trustee in bankruptcy, debtor in possession, assignee for the case may bebenefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition; assignment for the benefit of creditors; appointment or application for the appointment of a receiver; or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If at any Lender time when there is more than one Obligee any Obligee (a “Benefited Lender”"BENEFITTED OBLIGEE") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Secured Instrument(s), or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e8.1(i), or otherwise), in a greater proportion than any such payment to or collateral received by by, any other LenderObligee, if any, in respect of the amounts owing to such other Lender Obligee's Secured Instrument(s), or interest thereon, or fees due to it hereunder, such Benefited Lender Benefitted Obligee shall purchase for cash from the other Lenders a participating interest in Obligee such portion of the amounts owing to each such other Lender hereunderObligee's Secured Instrument(s), or make such payment on account of such fees, or shall provide such other Lenders Obligee with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender Benefitted Obligee to share the excess payment or benefits of such collateral or proceeds ratably with each of the LendersObligees; providedPROVIDED, howeverHOWEVER, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited LenderBenefitted Obligee, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Company agrees, that each Obligee purchasing a portion of another Obligee's Secured Instrument(s) owing to it may exercise all rights of payment (including, without limitation, rights of setoff) with respect to such portion as fully as if such Obligee were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders Obligee provided by law, each Lender Obligee shall have the right, without prior notice to Holdings or the BorrowerCompany, any such notice being expressly waived by Holdings and the Borrower Company to the extent permitted by applicable law, upon any amount Secured Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), ) to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof Obligee to or for the credit or the account of Holdings or the Borrower, as the case may beCompany. Each Lender Obligee agrees promptly to notify the Borrower Company and the Administrative Agent each other Obligee after any such setoff and application made by such Lenderthe Obligee, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefited Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, its participations in Letters of Credit, or interest thereon, or fees, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7(g), or otherwise), in a greater proportion than any such payment to or collateral received by any other applicable Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, its participations in Letters of Credit, or interest thereon, or fees, such Benefited benefited Lender shall purchase for cash from the such other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, participations in Letters of Credit, or fees, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the such other Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Loans or its participations in Letters of Credit may exercise all rights of payment (including rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, exercisable upon the occurrence and during the continuance of an Event of Default, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount the Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, claims in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof or bank controlling such Lender to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quiksilver Inc)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final, other than those deposits held on a Loan Party’s behalf composed of amounts held as payroll and taxes due thereon), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.-135-
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to If an Event of Default shall have occurred and be allocated to a particular continuing, each Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with and each of the Lenders; provided, however, that if all or their respective Affiliates is hereby authorized at any portion of such excess payment or benefits is thereafter recovered time and from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returnedtime to time, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the fullest extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any whatever currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, ) at any time held or and other obligations (in whatever currency) at any time owing by such Lender or any branch or agency thereof such Affiliate to or for the credit or the account of Holdings the Borrower or any other Credit Party against any and all of the Borrowerobligations of the Borrower or such Credit Party now or hereafter existing under this Agreement or any other Credit Document to such Lender, as irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Credit Document and although such obligations of the case Borrower or such Credit Party may bebe contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees promptly to notify the Borrower and the Administrative Agent promptly after any such setoff and application made by such Lender, application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the applicable Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this subsection shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to any Credit Party or any Subsidiary thereof (as to which the provisions of this subsection shall apply).
(c) Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.
Appears in 1 contract
Samples: Credit Agreement (WestRock Co)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time than those deposits held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.on a -107-
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Adjustments; Setoff. (a) Except to the extent that this Agreement If, other than as expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Classset forth elsewhere herein, if any Lender (a “Benefited Lender”) shall receive obtain on account of the Committed Loans made by it any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarilyvoluntary, by set-offinvoluntary, pursuant to events or proceedings through the exercise of the nature referred to in Section 8(e)any right of setoff, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect excess of its Commitment Percentage of payments on account of the amounts owing to such other Lender hereunderCommitted Loans obtained by all the Lenders, such Benefited Lender shall forthwith (x) notify Agent of such fact, and (y) purchase for cash from the other Lenders a participating interest such participations in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, Committed Loans made by them as shall be necessary to cause such Benefited purchasing Lender to share the excess payment or benefits of such collateral ratably with each of the Lendersthem; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited the purchasing Lender, such purchase shall to that extent be rescinded, rescinded and each other Lender shall repay to the purchasing Lender the purchase price and benefits returned, paid thereto together with an amount equal to such paying Lender's Commitment Percentage (according to the extent proportion of (i) the amount of such recoverypaying Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender, but without interestof any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Agent will keep records (which shall be conclusive and binding in the absence of demonstrable error), of participations purchased pursuant to this Section 11.7 and will in each case promptly notify the Lenders and Borrower following any such purchases. Any payments received after the Lenders have taken action pursuant to this Section 11.7 shall be allocated ratably among the Revolving Loans and the Swing Line Loans of all the Lenders.
(b) Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 11.7 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff, but subject to Section 11.7(d)) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.
(c) Nothing herein shall require any Lender to exercise any right of setoff or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of Borrower.
(d) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings Borrower or the Borrowerany other Person, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable lawBorrower, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), occurrence of an Event of Default to set off and appropriate setoff and apply against such amount any Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, whether matured or unmatured, at of Borrower to such Lender, any time held or amount owing by from such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as at or at any time after, the case happening of any of the above-mentioned events, and the aforesaid right of setoff may bebe exercised by such Lender against Borrower or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor of Borrower, or against anyone else claiming through or against, Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers, or execution, judgment or attachment creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Borrower expressly agrees that to the extent Borrower makes a payment or payments and such payment or payments, or any part thereof, are subsequently invalidated, declared to be fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Indebtedness to the Lenders or part thereof intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made.
Appears in 1 contract
Adjustments; Setoff. (a) Except Notwithstanding Section 8.09(b), if an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided prohibited by law, each Lender shall have with the right, without prior notice to Holdings or written consent of the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise)Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, ) at any time held or and other indebtedness at any time owing by such Lender or any branch or agency thereof such Affiliate to or for the credit or the account of Holdings any Loan Party against any or all of the Borrowerobligations of the Borrower and the other Loan Parties now or hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or such other Loan Document for amounts then due and owing and although such obligations may be unmatured; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as the case may beto which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent promptly after any such setoff and application made by such Lender, application; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Lender under this Section 9.06 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement Agreement, any other Loan Document or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLenders, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder(other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(eArticle 8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunderLender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness Indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any Affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if 11.10.1 If any Lender (a “Benefited Lender”"BENEFITTED LENDER") shall at any time receive any payment of all or part of its Pro Rata Share of the amounts owing to it hereunderLoans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e8.1(g), or otherwise), ) in a greater proportion than any such payment to or collateral received by any other LenderLenders, if any, in respect of the amounts owing to such other Lender hereunderLenders' Pro Rata Shares of the Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Pro Rata Share of the Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenderssuch other Lender; provided, however, PROVIDED that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Borrower and Guarantors expressly consent to the foregoing arrangements and agree that each Lender so purchasing a portion of another Lender's Pro Rata Share of the Loans may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) 11.10.2 In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the BorrowerBorrower and Guarantors, any such notice being expressly waived by Holdings Borrower and the Borrower Guarantors to the extent permitted by applicable law, upon upon
11.10.2.1 the filing of a petition under any amount becoming due and payable of the provisions of the federal bankruptcy act or amendments thereto, by Holdings or against,
11.10.2.2 the making of an assignment for the benefit of creditors by,
11.10.2.3 the application for the appointment, or the appointment, of any receiver of, or of any of the property of,
11.10.2.4 the issuance of any execution against any of the property of,
11.10.2.5 the issuance of a subpoena or order, in supplementary proceedings, against or with respect to any of the property of, and/or
11.10.2.6 the issuance of a warrant of attachment against any of the property of, Borrower hereunder (whether at the stated maturity, by acceleration or otherwise)either Guarantor, to set off and appropriate and apply against such amount any and all deposits (general or specialindebtedness, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, of Borrower or either Guarantor to such Lender, any amount owing from such Lender to Borrower or either Guarantor, at or at any time held or owing after, the happening of any of the above-mentioned events, and the aforesaid right of set off may be exercised by such Lender against Borrower and/or either of or both Guarantors or against any branch or agency thereof to or trustee in bankruptcy, debtor in possession, assignee for the credit benefit of creditors, receiver, or execution, judgment or attachment creditor of Borrower or either Guarantor, or against anyone else claiming, through or against Borrower or either Guarantor or such trustee in bankruptcy, debtor in possession, assignee for the account benefit of Holdings creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the Borrowerfact that such right of set off shall not have been exercised by such Lender prior to the making, as filing or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the case may bebenefit of creditors, appointment or application for the appointment of a receiver, or issuance of execution, subpoena or order of warrant. Each Lender agrees promptly to notify Borrower or the Borrower respective Guarantor (as applicable) and the Administrative Agent after any such setoff set off and application made by such Lender, provided ; PROVIDED that the failure to give such notice shall not affect the validity of such setoff set off and application. The proceeds of any set off or application pursuant to this Section 11.10(b) shall be distributed in accordance with the Section 11.10(a).
Appears in 1 contract
Samples: Revolving Loan Agreement (Senior Housing Properties Trust)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefitted Lender”") shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loan, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in clause (g) of Section 8(e)7.1, or otherwise), ) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLenders' Loan, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loan, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. Borrower expressly consents to the foregoing arrangements and agrees that each Lender so purchasing a portion of another Lender's Loan may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon upon
(i) the filing of a petition under any amount becoming due and payable of the provisions of the federal bankruptcy act or amendments thereto, by Holdings or against;
(ii) the making of an assignment for the benefit of creditors by;
(iii) the application for the appointment, or the appointment, of any receiver of, or of any of the property of;
(iv) the issuance of any execution against any of the property of;
(v) the issuance of a subpoena or order, in supplementary proceedings, against or with respect to any of the property of; and/or
(vi) or the issuance of a warrant of attachment against any of the property of; Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or specialindebtedness, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, of Borrower to such Lender, any amount owing from such Lender to Borrower, at or at any time held or owing after, the happening of any of the above-mentioned events, and the aforesaid right of set off may be exercised by such Lender against Borrower or against any branch or agency thereof to or trustee in bankruptcy, debtor in possession, assignee for the credit benefit of creditors, receiver, or the account execution, judgment or attachment creditor of Holdings or the Borrower, as or against anyone else claiming through or against Borrower or such trustee in bankruptcy, debtor in possession, assignee for the case may bebenefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set off shall not have been exercised by such Lender prior to the making, filing or issuance, or service upon such Lender of, or of notice of, any such petition; assignment for the benefit of creditors; appointment or application for the appointment of a receiver; or issuance of execution, subpoena or order of warrant. Each Lender agrees promptly to notify the Borrower Borrower, Agent and the Administrative Agent after any such setoff set off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff set off and application. The proceeds of any set off or application pursuant to this subsection (b) of Section 10.8 shall be distributed in accordance with the preceding subsection (a).
Appears in 1 contract
Samples: Revolving Loan Agreement (Health & Retirement Properties Trust)
Adjustments; Setoff. (a) Except to the extent that this Agreement or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular ClassLender, if any Lender (a “Benefited Benefitted Lender”) shall receive any payment of all or part of the amounts Obligations owing to it hereunder, or receive any collateral (other than in respect thereof connection with an assignment made pursuant to Section 10.6) (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e)8.1(7) or (8), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts Obligations owing to such other Lender hereunderLender, such Benefited Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts Obligations owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateralLender, as shall be necessary to cause such Benefited Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender and their respective Affiliates shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount Obligations becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise, but after giving effect to any applicable period of grace), to set off and appropriate and apply against to the payment of such amount Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender Lender, any Affiliate thereof or any branch of their respective branches or agency thereof agencies to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, Lender or its Affiliate; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited 'Benefitted Lender”') shall at any time receive any payment of all or part of the amounts owing to it hereunderits Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e7.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, such Benefited benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, provided that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, (without prior notice to Holdings or the Borrower, Borrower any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law), upon any amount becoming due and payable by Holdings or the Borrower hereunder or under the Notes (whether at the stated maturity, by acceleration or otherwise), ) to set off setoff and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, ; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if any Lender (a “Benefited Lender”) shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(e), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.-103-
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final, other than those deposits held on a Loan Party’s behalf composed of amounts held as payroll and taxes due thereon), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (Cco Holdings LLC)
Adjustments; Setoff. (a) Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders of a particular Class, if If any Lender (a “Benefited "benefited Lender”") shall at any time receive ---------------- any payment of all or part of the amounts owing to it hereunderits Loans, or receive any collateral in respect thereof interest thereon, or fees (whether voluntarily or involuntarily, by set-offsetoff, pursuant to events or proceedings of the nature referred to in Section 8(e)7(g) or 8.8, or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunderLender's Loans, or interest thereon, or fees, such Benefited benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunderLender's Loans, or shall provide such other Lenders with the benefits of any such collateralfees, as shall be necessary to cause such Benefited benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, -------- ------- that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including rights of setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In Subject to Section 9.7(a), in addition to any rights and remedies of the Lenders provided by law, with the prior consent of the Agent, each Lender shall have the right, exercisable upon the occurrence and during the continuance of an Event of Default and acceleration of the Obligations pursuant to Section 7, without prior notice to Holdings or the Borrower, any such notice being expressly waived by Holdings and the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by Holdings or the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and off, appropriate and apply against any such amount Obligations any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, claims in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof or bank controlling such Lender to or for the credit or the account of Holdings or the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, provided however, that the failure to give such notice -------- ------- shall not affect the validity of such setoff and application.
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