Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error. (b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment. (d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 5 contracts
Samples: Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (Endurant Capital Management LP), Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (TENOR CAPITAL MANAGEMENT Co., L.P.), Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (DG Capital Management, LLC)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent or the Collateral Agent notifies such Lender that such the Agent or the Collateral Agent, as applicable, has determined in its sole discretion that any funds received by such Lender from such Agent a Secured Party or any of its respective Affiliates (a “Payment Recipient”) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent or the Collateral Agent, as applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date that is two Business Days after the Agent or the Collateral Agent, as applicable, has demanded the return of such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent or the Collateral Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent or the Collateral Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent or the Collateral Agent, as applicable, for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent or the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error has been made (and that it is deemed to have knowledge in the case of such error at the time of receipt of such Erroneous Payment) immediately preceding clause (z)), in each case, with respect to such Erroneous Paymentpayment, prepayment or repayment; and to (ii) such Lender, or the extent permitted by applicable law, such Lender Agent or the Collateral Agent shall not assert (and shall cause any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based other recipient that receives funds on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent or the Collateral Agent of its receipt of such occurrence andpayment, upon demand from such Agentprepayment or repayment, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds details thereof (in reasonable detail) and that it is so notifying the currency so receivedAgent or the Collateral Agent pursuant to this Section 11.13(b), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Each Lender hereby authorizes the Agent or the Collateral Agent to set off, net and each other Loan Party hereby agrees that apply any and all amounts at any time owing to such Lender under any Transaction Document, or otherwise payable or distributable by the Agent or the Collateral Agent to such Lender from any source under or in connection with the Transaction Documents, against any amount due to the Agent or the Collateral Agent under immediately preceding clause (xa) in or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent or the Collateral Agent for any reason, after demand therefor by the Agent or the Collateral Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) for (and/or from any reasonPayment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Agent’s or the Collateral Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent or the Collateral Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the Agents “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent or the Collateral Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Agent, (ii) the Agent or the Collateral Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent or the Collateral Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Agent or the Collateral Agent may reflect in the applicable register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. Subject to Article XV, the Agent or the Collateral Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent or the Collateral Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent or the Collateral Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent or the Collateral Agent may be equitably subrogated, the Agent or the Collateral Agent shall be contractually subrogated to all the rights and interests of such the applicable Lender or Secured Party under the Transaction Documents with respect to such amount and each Erroneous Payment Return Deficiency (ythe “Erroneous Payment Subrogation Rights”).
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent or Collateral Agent from the Borrower or any other Loan Party for the purpose of making a payment in respect of the Obligations, in which case such payment shall discharge and otherwise satisfy the applicable obligation of the Borrower being so paid, prepaid or repaid in accordance with the terms of this Agreement. Notwithstanding anything to the contrary herein, in connection with any Erroneous PaymentPayment (including in connection with any subrogation related thereto), under no circumstances shall the Collateral Agent be deemed a lender-of-record.
(df) To the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations under this Section 9.22 11.13 shall survive the resignation or replacement of the AgentsAgent or the Collateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (Owl Rock Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent the Administrator notifies such Lender that such Agent the Administrator has determined in its sole discretion that any funds received by such Lender from such Agent the Administrator or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Agent the Administrator for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent the Administrator to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent the Administrator (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent the Administrator (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent the Administrator of such occurrence and, upon demand from such Agentthe Administrator, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Servicer hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrator shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower Borrower, Servicer or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAffiliate thereof.
(d) Each party’s obligations under this Section 9.22 5.10 shall survive the resignation or replacement of the AgentsAdministrator or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations (or any portion thereof)) under any Transaction Document.
Appears in 4 contracts
Samples: Receivables Financing Agreement, Receivables Financing Agreement, Receivables Financing Agreement (Cincinnati Bell Inc)
Erroneous Payments. (a) Each Lender (which term shall for the purposes of this and the succeeding paragraphs of this Section 7.03 include the Issuing Banks) hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 7.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Each Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount to the maximum extent permitted by law and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided, that this clause (c) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), any Obligations of the Loan Parties in each caserespect of principal and interest hereunder relative to the amount (and/or timing for payment) of the Obligations of the Loan Parties in respect of principal and interest hereunder that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, this clause (c) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from the any Borrower or any other Loan Party for the purpose of making such Erroneous Payment, satisfying Obligations or from the proceeds of Collateral.
(d) Each party’s obligations under this Section 9.22 7.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 4 contracts
Samples: Amended and Restated Revolving Credit Agreement (Bath & Body Works, Inc.), Revolving Credit Agreement (Bath & Body Works, Inc.), Revolving Credit Agreement (Victoria's Secret & Co.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentParties.
(d) Each party’s obligations This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 9.22 11 shall survive not be interpreted to increase (or accelerate the resignation due date for), or replacement have the effect of increasing (or accelerating the due date for), the Obligations of the Agents, Loan Parties relative to the termination amount (and/or timing for payment) of the Commitments or Obligations that would have been payable had such Erroneous Payment not been made by the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)Collateral Agent.
Appears in 3 contracts
Samples: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Erroneous Payments. (a) Each Lender Bank hereby agrees that (ix) if any the Paying Agent notifies such Lender Bank that such the Paying Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Paying Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Paying Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Paying Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Paying Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Paying Agent to any Lender Bank under this clause (a) Section 8.7 shall be conclusive, absent manifest error.
(bi) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Paying Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Paying Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Paying Agent of such occurrence and, upon demand from such the Paying Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Paying Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cii) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Paying Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Company except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such Agent from of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCompany.
(diii) Each party’s obligations under this Section 9.22 8.7 shall survive the resignation or replacement of the AgentsPaying Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Paper.
Appears in 3 contracts
Samples: Revolving Credit Facility Agreement (Southwest Airlines Co), Revolving Credit Facility Agreement (Southwest Airlines Co), Revolving Credit Facility Agreement (Southwest Airlines Co)
Erroneous Payments. (a) Each Lender and each Issuing Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds New York Fed Bank Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any Issuing Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds New York Fed Bank Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 3 contracts
Samples: Credit Agreement (Blue Owl Capital Inc.), Credit Agreement (Blue Owl Capital Inc.), Credit Agreement (Blue Owl Capital Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 7.11 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Borrower, except, in each casecase of this clause (y), to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment.
(d) Each party’s obligations under this Section 9.22 7.11 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations Document.
(or e) For purposes of this Section 7.11, the term “Lender” includes any portion thereof)Issuing Bank.
Appears in 3 contracts
Samples: Five Year Credit Agreement (Arizona Public Service Co), Credit Agreement (Arizona Public Service Co), Credit Agreement (Arizona Public Service Co)
Erroneous Payments. (a) Each Lender and L/C Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Lxxxxx or L/C Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender or L/C Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or L/C Issuer shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or L/C Issuer under this clause (aSection 9.18(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and L/C Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and L/C Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or L/C Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment (or any portion thereof) is, and solely with respect to the amount of such Erroneous erroneous Payment that is, is comprised of funds received by such Agent from of a Loan Party. Notwithstanding anything to the Borrower contrary herein or in any other Loan Party for Document, the purpose provisions of making such Erroneous Paymentthis Section 9.18 relating to Payments (including the preceding two paragraphs and this paragraph) shall not constitute, create or otherwise alter the Obligations on the part of the Loan Parties under the Loan Documents or otherwise.
(d) Each party’s obligations under this Section 9.22 9.18 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Container Store Group, Inc.), Senior Secured Superpriority Debtor in Possession Asset Based Revolving Credit Agreement (Container Store Group, Inc.)
Erroneous Payments. (a) Each Lender Purchaser hereby agrees that (i) if any the Collateral Agent notifies in writing such Lender Purchaser that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender Purchaser from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Purchaser (whether or not known to such LenderPurchaser) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Collateral Agent may not make any such demand under this clause (i) with respect to an Erroneous Payment unless such demand is made within two Business Days of the date of receipt of such Erroneous Payment by the applicable Purchaser), such Lender Purchaser shall promptly, but in no event later than one two Business Day thereafterDays after receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made, in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable lawApplicable Law, such Lender Purchaser shall not assert any right or claim to the Erroneous Payment, and such Purchaser hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A written notice of any the Collateral Agent to any Lender Purchaser under this clause (aSection 9.12(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (aSection 9.12(a), each Lender Purchaser hereby further agrees that that, if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (xi) that is in a different amount than, or on a different date from, that specified in a written notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (yii) that was not preceded or accompanied by an Erroneous Payment Notice, Notice or (ziii) that such Lender Purchaser otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has shall have been presumed to have been made (and that it is deemed absent written confirmation from the Collateral Agent to have knowledge of such error at the time of receipt of such Erroneous Paymentcontrary) with respect to such Erroneous Payment, and and, to the extent permitted by applicable lawApplicable Law, such Lender Purchaser shall not assert any right or claim to the Erroneous Payment, and such Purchaser hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Purchaser agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon written demand from such the Collateral Agent, it such Purchaser shall promptly, but in all events no later than one two Business Day thereafterDays after receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Each Party hereby agrees that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender Purchaser with respect to such amount amount, and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentDermavant hereunder.
(d) Each partyParty’s obligations under this Section 9.22 9.12 shall survive the resignation or replacement of the Agents, the termination of the Commitments Collateral Agent or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)obligations owed by Dermavant hereunder.
Appears in 2 contracts
Samples: Revenue Interest Purchase and Sale Agreement (Roivant Sciences Ltd.), Revenue Interest Purchase and Sale Agreement (Roivant Sciences Ltd.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.04 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 Section 8.04 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Samples: Credit Agreement (Select Medical Holdings Corp), Credit Agreement (Concentra Group Holdings Parent, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; ), individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause subsection (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause subsection (a)) above, each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Loan Party hereunder or under any of the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentDocuments.
(d) Each party’s obligations under this Section 9.22 10.22 shall survive the resignation or replacement of Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender, the termination of this Agreement, the termination of the Commitments or and the repayment, satisfaction or discharge payment in full of all Loan Document Obligations (or any portion thereof)the Obligations.
Appears in 2 contracts
Samples: Loan and Security Agreement (SkyWater Technology, Inc), Loan and Security Agreement (SkyWater Technology, Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent the Administrator notifies such Lender that such Agent the Administrator has determined in its sole discretion that any funds received by such Lender from such Agent the Administrator or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Agent the Administrator for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent the Administrator to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent the Administrator (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent the Administrator (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent the Administrator of such occurrence and, upon demand from such Agentthe Administrator, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party Servicers hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrator shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower Borrowers, Servicer or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAffiliate thereof.
(d) Each party’s obligations under this Section 9.22 5.10 shall survive the resignation or replacement of the AgentsAdministrator or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations (or any portion thereof)) under any Transaction Document.
Appears in 2 contracts
Samples: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement (Cincinnati Bell Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent or the Collateral Agent notifies such Lender that such the Agent or the Collateral Agent, as applicable, has determined in its sole discretion that any funds received by such Lender from such Agent a Secured Party or any of its respective Affiliates (a “Payment Recipient”) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent or the Collateral Agent, as applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date that is two Business Days after the Agent or the Collateral Agent, as applicable, has demanded the return of such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent or the Collateral Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent or the Collateral Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent or the Collateral Agent, as applicable, for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent or the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error has been made (and that it is deemed to have knowledge in the case of such error at the time of receipt of such Erroneous Payment) immediately preceding clause (z)), in each case, with respect to such Erroneous Paymentpayment, prepayment or repayment; and to (ii) such Lender, or the extent permitted by applicable law, such Lender Agent or the Collateral Agent shall not assert (and shall cause any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based other recipient that receives funds on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent or the Collateral Agent of its receipt of such occurrence andpayment, upon demand from such Agentprepayment or repayment, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds details thereof (in reasonable detail) and that it is so notifying the currency so receivedAgent or the Collateral Agent pursuant to this Section 11.13(b), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Each Lender hereby authorizes the Agent or the Collateral Agent to set off, net and each other Loan Party hereby agrees that apply any and all amounts at any time owing to such Lender under any Transaction Document, or otherwise payable or distributable by the Agent or the Collateral Agent to such Lender from any source under or in connection with the Transaction Documents, against any amount due to the Agent or the Collateral Agent under immediately preceding clause (xa) in or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent or the Collateral Agent for any reason, after demand therefor by the Agent or the Collateral Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) for (and/or from any reasonPayment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Agent’s or the Collateral Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent or the Collateral Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the Agents “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent or the Collateral Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Agent, (ii) the Agent or the Collateral Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent or the Collateral Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Agent or the Collateral Agent may reflect in the applicable register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. Subject to Article XV, the Agent or the Collateral Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent or the Collateral Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent or the Collateral Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent or the Collateral Agent may be equitably subrogated, the Agent or the Collateral Agent shall be contractually subrogated to all the rights and interests of such the applicable Lender or Secured Party under the Transaction Documents with respect to such amount and each Erroneous Payment Return Deficiency (ythe “Erroneous Payment Subrogation Rights”).
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent or Collateral Agent from the Borrower or any other Loan Party party for the purpose of making a payment in respect of the Obligations, in which case such payment shall discharge and otherwise satisfy the applicable obligation of the Borrower being so paid, prepaid or repaid in accordance with the terms of this Agreement. Notwithstanding anything to the contrary herein, in connection with any Erroneous PaymentPayment (including in connection with any subrogation related thereto), under no circumstances shall the Collateral Agent be deemed a lender-of-record.
(df) To the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations under this Section 9.22 11.13 shall survive the resignation or replacement of the AgentsAgent or the Collateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 2 contracts
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.10 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 9.10 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Samples: Third Amended and Restated Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/), Revolving Credit Agreement (American Tower Corp /Ma/)
Erroneous Payments. (a) Each Lender hereby agrees If the Agent determines (which determination shall be conclusive and binding, absent manifest error) that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted to, or otherwise erroneously or mistakenly received by, such any funds to any Lender (whether or not such transmittal was known to by such Lender) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”) and the Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by the Agent, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and Effective Rate.
(iib) to To the extent permitted by applicable law, such each Lender shall agrees not to assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliatesportion thereof) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments receivedPayment (or any portion thereof) (including, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this This Section 9.22 10.5 shall survive the resignation or replacement of the AgentsAgent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof)) under any Loan Document.
(d) For purposes of this Section 10.5, the term “Lender” includes each Issuing Lender.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Archaea Energy Inc.), Revolving Credit and Term Loan Agreement (Archaea Energy Inc.)
Erroneous Payments. (a) Each Lender and the Issuing Lender hereby agrees that (i) if any the Administrative Agent (x) notifies such Lender or the Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or the Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender or the Issuing Lender (whether or not known to such Lender or the Issuing Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and (y) demands the return of such Erroneous Payment (or a portion thereof), such Lender or the Issuing Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or the Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or the Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender or the Issuing Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender and the Issuing Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticea notice of payment, or (z) that such Lender or the Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender or the Issuing Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or the Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender and the Issuing Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or the Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or the Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 12.12), the Agents Administrative Agent shall be subrogated to all the rights of such Lender or the Issuing Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; exceptprovided that this Section 12.12 shall not be interpreted to increase (or accelerate the due date for) the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, in each casefurther, that for the avoidance of doubt, this Section 12.12(c) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, Administrative Agent shall have the right, without prior notice to any Lender or the Issuing Lender, any such notice being expressly waived by such Lender or the Issuing Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 12.12 and that has not been returned to the 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 but excluding trust accounts), 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 Administrative Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender or the Issuing Lender. Administrative Agent agrees promptly to notify the Lender or the Issuing Lender after any such setoff and application made by Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 12.12 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (CoreCivic, Inc.), Credit Agreement (CoreCivic, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Deal Agent notifies such Lender that such the Deal Agent has determined in its sole discretion that any funds received by such Lender from such the Deal Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; ), individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Deal Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Deal Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Deal Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Deal Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Deal Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Deal Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such the Deal Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Deal Agent of such occurrence and, upon demand from such the Deal Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Deal Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to such the Deal Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Deal Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Deal Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower or any other Loan Party; except, in each case, except to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Deal Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 11.10 shall survive the resignation or replacement of the AgentsDeal Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 2 contracts
Samples: Loan and Security Agreement (Credit Acceptance Corp), Loan and Security Agreement (Credit Acceptance Corp)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Paying Agent notifies such Lender that such the Paying Agent has determined (or the Administrative Agent has determined and notified the Paying Agent in writing) in its sole discretion that any funds received by such Lender from such the Paying Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Paying Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Paying Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Paying Agent to any Lender under this clause (a) Section 8.9 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Paying Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Paying Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Paying Agent of such occurrence and, upon demand from such the Paying Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) Each Lender hereby authorizes the Paying Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Credit Document, or otherwise payable and distributable by the Paying Agent to such Lender under any Credit Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Paying Agent has demanded to be returned under clause (a) above.
(d) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous Payment erroneous payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment payment (or portion thereof) for any reason, the Agents Paying Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment erroneous payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCompany.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Enova International, Inc.), Credit Agreement (Enova International, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in Dollars, and if such Lender fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Administrative Agent by such Business Day, such Lender shall also pay the Administrative Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (iiy) to the extent permitted by applicable lawLaw, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that which is required to be paid to such Lender pursuant to the terms hereof or that which is specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in Dollars, and if such Lender fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Administrative Agent by such Business Day, such Lender shall also pay the Administrative Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Lender further authorizes and agrees that in the event an Erroneous Payment (or portion thereof) is not recovered from such Lender that has received such Erroneous Payment (or portion thereof) and Administrative Agent has received amounts that are due and owing to such Lender which the Administrative Agent is required to remit to such Lender, Administrative Agent may offset such amounts by the equivalent amount of Erroneous Payments received by such Lender and, as applicable, return such amounts to the applicable payor.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount amount, and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 12.14 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Franklin BSP Capital Corp), Revolving Credit Agreement (Franklin BSP Capital Corp)
Erroneous Payments. (a) Each Lender hereby agrees If Agent determines (which determination shall be conclusive and binding, absent manifest error) that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted toany funds to any Lender or any Person who has received funds by or on behalf of a Lender (together with their respective successors and assigns, or otherwise erroneously or mistakenly received by, such Lender a “Payment Recipient”) (whether or not such transmittal was known to by any such LenderPayment Recipient) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”’’) and Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by Agent, in same day funds (in the currency so receivedreceived by the Payment Recipient), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender Payment Recipient to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and Rate.
(iib) to To the extent permitted by applicable law, such each of each Lender shall agrees not to assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliatesportion thereof) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments receivedPayment (or any portion thereof) (including, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xThis Section 11.13(c) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of Agent, any transfer of rights or obligations by, or the Agentsreplacement of, the termination of the Commitments or a Lender and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.)
Erroneous Payments. (a) Each Lender Purchaser and Purchaser Agent hereby agrees that (ix) if any the Agent notifies such Lender Purchaser or Purchaser Agent that such the Agent has determined in its sole discretion that any funds received by such Lender Purchaser or Purchaser Agent from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Purchaser or Purchaser Agent (whether or not known to such Purchaser or Purchaser Agent), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Purchaser or Purchaser Agent shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser or Purchaser Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Purchaser or Purchaser Agent shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender Purchaser or Purchaser Agent under this clause (aSection 11.10(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Purchaser and Purchaser Agent hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Purchaser and Purchaser Agent agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Purchaser or Purchaser Agent shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser or Purchaser Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Seller Parties hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender Purchaser or Purchaser Agent that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender Purchaser or Purchaser Agent with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Recourse Obligation owed by the Borrower Seller Parties; provided that this Section 11.10(c) shall not be interpreted to increase (or any other Loan Partyaccelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Recourse Obligations of the Seller Parties relative to the amount (and/or timing for payment) of the Recourse Obligations that would have been payable had such erroneous Payment not been made by the Agent; exceptprovided, in each casefurther that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party Seller for the purpose of making such Erroneous erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.10 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Purchaser or Purchaser Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Recourse Obligations (or under any portion thereof)Transaction Document. Each Uncommitted Purchaser’s obligations under this Section 11.10 shall be subject to Sections 13.5 and 13.6 and each Related Committed Purchaser shall be liable, on a joint and several basis, for all obligations of its related Uncommitted Purchaser under this Section 11.10.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Henry Schein Inc), Receivables Purchase Agreement (Henry Schein Inc)
Erroneous Payments. (a) Each Lender hereby agrees In the event that Administrative Agent makes any payment (iwhether principal, interest or any other payment of any type whatsoever) if to any Bank (an “Erroneous Payment Recipient”) that Administrative Agent notifies such Lender that such Agent has determined in its sole and absolute discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender has determined was made in error (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such ), then each Erroneous Payment (or a portion thereof)Recipient shall be required, such Lender shall promptlyand hereby agrees, but in no event later than one Business Day thereafter, return to such repay to Administrative Agent upon demand the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was amount so made, in same day funds (in the currency so received)funds, together with interest thereon in respect of for each day from and including the date such amount is paid to such Erroneous Payment (or portion thereof) was received by such Lender to Recipient but excluding the date such amount is repaid of payment to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to compensation. To the extent permitted by applicable lawApplicable Laws, such Lender shall Erroneous Payment Recipient agrees not assert any right or claim to the Erroneous Paymentassert, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect as to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waivesAdministrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cb) The Each Borrower and each other Loan Party Obligor hereby agrees that (x) in the event if an Erroneous Payment (or portion thereof) is not recovered by Administrative Agent from any Lender Erroneous Payments Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Erroneous Payment Recipient with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the any Borrower or any other Loan Party; exceptObligor, provided, however, that notwithstanding the foregoing, in each case, to the extent such no event shall an Erroneous Payment is, and solely with respect to diminish any payment made by Borrower against the amount of such Erroneous Payment that is, comprised of funds received by such Agent from Obligations or otherwise increase the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentObligations.
(dc) Each party’s obligations under this Section 9.22 2.13 shall survive the resignation or replacement of Agent or any transfer of rights or obligations by, or the Agentsreplacement of, an Erroneous Payment Recipient, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Samples: Syndicated Term Loan Agreement (Strategic Storage Trust VI, Inc.), Syndicated Term Loan Agreement (Strategic Storage Trust VI, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (aSection 11.5(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one two Business Day Days thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.5(a) shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.), Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect and if such Lender fails to return the amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (ai) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 2 contracts
Samples: Loan Agreement (Banyan Acquisition Corp), Loan Agreement (Banyan Acquisition Corp)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, Payment and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 9.11), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Loan Document Obligations owed by the Borrower or any other Loan Party; exceptprovided that this clause (c) shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the obligations of any Loan Party relative to the amount (and/or timing for payment) of the obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; and provided, further, that for the avoidance of doubt, the foregoing shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment to the Lenders.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, the Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 9.11 and which has not been returned to the 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 but excluding trust accounts), 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 the Administrative Agent or any of its Affiliates, branches or agencies thereof to or for the credit or the account of such Lender. The Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by the Administrative Agent; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 9.11 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or and the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Mynaric AG), Credit Agreement (Mynaric AG)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentParties.
(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Collateral Agent.
(e) Each party’s obligations under this Section 9.22 11 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Erroneous Payments. (a) Each Lender hereby agrees If Agent determines (which determination shall be conclusive and binding, absent manifest error) that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted toany funds to any Lender or any Person who has received funds by or on behalf of a Lender (together with their respective successors and assigns, or otherwise erroneously or mistakenly received by, such Lender a “Payment Recipient”) (whether or not such transmittal was known to by any such LenderPayment Recipient) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”) and Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by Agent, in same day funds (in the currency so receivedreceived by the Payment Recipient), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender Payment Recipient to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and Rate.
(iib) to To the extent permitted by applicable law, such each of each Lender shall agrees not to assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliatesportion thereof) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments receivedPayment (or any portion thereof) (including, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xThis Section 11.14(c) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of Agent, any transfer of rights or obligations by, or the Agentsreplacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Paying Agent notifies such Lender that such the Paying Agent has determined (or the Administrative Agent has determined and notified the Paying Agent in writing) in its sole discretion that any funds received by such Lender from such the Paying Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Paying Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Paying Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Paying Agent to any Lender under this clause (a) Section 8.9 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Paying Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Paying Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Paying Agent of such occurrence and, upon demand from such the Paying Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Paying Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCompany.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 2 contracts
Samples: Credit Agreement (Enova International, Inc.), Credit Agreement (Enova International, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 12.15 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.04 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Obligations under any Credit Document.
(e) This Section 12.15 is an agreement among the Lenders and the Administrative Agent and notwithstanding anything to the contrary herein or in any other Credit Document Obligations (and without limitation to the acknowledgment and agreements in the preceding clause (c)), the provisions of this Section 12.15 shall not constitute or create any obligations on the part of the Borrowers or any portion thereof)Credit Party.
Appears in 2 contracts
Samples: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.)
Erroneous Payments. (a) Each Lender and each Issuing Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender or any Issuing Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender or Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (each such Lender and that it Issuing Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender and each Issuing Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 8.12), the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the any Borrower or any other Loan Party; exceptprovided that this Section 8.12 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided further that, for the avoidance of doubt, this clause (c) shall not apply to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from from, or on behalf of (including through the Borrower or exercise of remedies under any other Loan Party Document), the Loan Parties for the purpose of making such Erroneous Paymenta payment on the Obligations.
(d) In addition to any rights and remedies of the Administrative Agent provided by Law, each Lender or Issuing Lender hereby authorizes the Administrative Agent to, without prior written notice to any Lender or Issuing Lender, any such notice being expressly waived by such Lender or Issuing Lender to the extent permitted by applicable law, set off, net and apply any and all amounts at any time owing to such Lender or Issuing Lender under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Issuing Lender under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a).
(e) Each party’s obligations under this Section 9.22 8.12 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or Commitments, the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document or the termination of the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Administrative Agent notifies such Lender that such Administrative Agent has determined in its sole discretion that any funds received by such Lender from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such LenderLender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 10.18 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. ENTERED INTO as of the date first above written. By: /s/ Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx Title: Chief Financial Officer and Senior Vice President TRUIST BANK, as the Administrative Agent, as the Issuing Bank, as the Swingline Lender, and as a Lender By: /s/ Xxxxx Xxxxxx Xxxxx Xxxxxx, Director Truist Bank $50,000,000.00 Reference is made to the Amended and Restated Revolving Credit Agreement dated as of October 6, 2023 (as amended and in effect on the date hereof, the “Agreement”), among HEALTHSTREAM, INC., a Tennessee corporation (“Borrower”), the lenders from time to time party thereto and TRUIST BANK, as Administrative Agent for such lenders. Terms defined in the Agreement are used herein with the same meanings. The [name of assignor] (the “Assignor”) hereby sells and assigns, without recourse, to [name of assignee] (the “Assignee”), and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as of the Assignment Date set forth below, the interests set forth below (the “Assigned Interest”) in the Assignor’s rights and obligations under the Agreement, including, without limitation, the interests set forth below, as applicable, in the Revolving Commitment of the Assignor on the Assignment Date and Revolving Loans owing to the Assignor which are outstanding on the Assignment Date, but excluding accrued interest and fees to and excluding the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the provisions of the Agreement and, to the extent of the Assigned Interest, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest, relinquish its rights and be released from its obligations under the Agreement. This Assignment and Acceptance is being delivered to the Administrative Agent together with any documentation required to be delivered by the Assignee, duly completed and executed by the Assignee. The Assignee shall pay the fee payable to the Administrative Agent pursuant to this Agreement.
(a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (ii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby, and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of their respective Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers, any of their respective Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of the Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, and (iii) it has received a copy of the Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date, unless otherwise agreed in writing by the Administrative Agent, Assignor and Assignee. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy or other electronic transmission (including in pdf format) shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of Tennessee. Assignment Date: Legal Name of Assignor: Legal Name of Assignee: Assignee’s Address for Notices: Effective Date of Assignment: (“Effective Date”): [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] Revolving Loans $ % Term Loan $ N/A The terms set forth above are hereby agreed to: [Name of Assignor], as Assignor By: Name: Title: [Name of Assignee], as Assignee By: Name: Title: [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] The undersigned hereby consents to the within assignment: HEALTHSTREAM, INC. TRUIST BANK, as Administrative Agent By: By: Xxxxx X. Xxxxxxx Chief Financial Officer Xxxxxxxx Xxxx, Director and Senior Vice President [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] THIS SUBSIDIARY GUARANTY AGREEMENT (the “Agreement”), dated as of the ____ day of ___________________, 20________, by and among HEALTHSTREAM, INC., a Tennessee corporation (the “Borrower”), each of the subsidiaries of the Borrower listed on Schedule I hereto (each such subsidiary individually, a “Guarantor” and collectively, the “Guarantors”) and TRUIST BANK, a North Carolina banking corporation, as administrative agent (the “Administrative Agent”) for the benefit of itself and the several banks and other financial institutions (the “Lenders”) from time to time party to the Amended and Restated Revolving Credit Agreement, dated October 6, 2023, by and among the Borrower, the several banks and other financial institutions from time to time party thereto (the “Lenders”), the Administrative Agent, and Truist Bank, as Issuing Bank (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall the meanings assigned to such terms in the Credit Agreement).
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any If the Agent notifies such any Lender that such Agent it has determined in its sole discretion (which determination shall be conclusive and binding, absent manifest error) that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted to, or otherwise erroneously or mistakenly received by, such any funds to any Lender (whether or not such transmittal was known to by such Lender) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”) and the Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by the Agent, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest errorEffective Rate.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees The parties hereto agree that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Indebtedness owed by the any Borrower or any other Loan Credit Party; , except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party Credit Party.
(c) To the extent permitted by applicable law, each Lender agrees not to assert any right or claim to any Erroneous Payment (or any portion thereof) and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the purpose return of making such any Erroneous PaymentPayment (or any portion thereof) (including, without limitation, any defense based on “discharge for value” or any similar doctrine).
(d) Each party’s obligations under this This Section 9.22 10.5 shall survive the resignation or replacement of the AgentsAgent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof) under any Loan Document
(e) For purposes of this Section 10.5, the term “Lender” includes each Issuing Lender.”
12. The last paragraph under the definition of “Benchmark Transition Event” in Section 11.11 of the Credit Agreement is amended and restated as follows: “For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). Further, the parties hereto acknowledge that, by virtue of the announcements on March 5, 2021 by the ICE Benchmark Administration and the U.K. Financial Conduct Authority, a Benchmark Transition Event has occurred with respect to the LIBOR Rate Benchmark for purposes of this definition and that no additional notice of such event shall be required hereunder.”
13. This Amendment shall become effective (according to the terms hereof) on the date (the “Sixth Amendment Effective Date”) that the following conditions have been fully satisfied by Borrower:
(a) Agent shall have received via facsimile or PDF (followed by the reasonably prompt delivery of original signatures after the Sixth Amendment Effective Date) counterpart originals of this Amendment, in each case duly executed and delivered by Agent, Borrower and the Lenders.
(b) Agent shall have received payment of all fees and out of pocket expenses incurred in connection with this Amendment (including, without limitation, legal fees, and the fee set forth in Section 15 below).
14. The Borrower shall comply with Section 7.13 of the Credit Agreement with respect to PlushCare within the time periods set forth therein.
15. In consideration of this Amendment, Borrower shall pay to Agent, an amendment fee of $15,000, which fee shall be earned, due and payable on the Sixth Amendment Effective Date.
16. The Borrower agrees as follows with respect to the period following the Sixth Amendment Effective Date:
(a) As soon as available, and in any event, on or before sixty (60) days after the consummation of the PlushCare Acquisition (or such longer period as the Agent shall agree in its sole discretion), the Agent shall have received and satisfactorily reviewed a day 1 balance sheet of the Borrower and its Subsidiaries after giving effect to the PlushCare Acquisition, subject to final purchase accounting; and
(b) As soon as available, and in any event, on or before forty-five (45) days after the consummation of the PlushCare Acquisition (or such longer period as the Agent shall agree in its sole discretion), the Borrower shall deliver, or cause to be delivered, collateral assignments of the Master Service Agreements by and between Borrower and PlushCare of California, Inc., PlushCare Physician Group of Wyoming, Inc., PlushCare Physicians Group PC, and PlushCare Physician’s Group, Ltd. (each, a “PC”), respectively, together with acknowledgments of each collateral assignments from each PC.
17. Borrower hereby certifies to the Agent and the Lenders as of the Sixth Amendment Effective Date that (a) execution and delivery of this Amendment and the performance by each of the Credit Parties of its obligations under the Credit Agreement as amended hereby (herein, as so amended, the “Amended Credit Agreement”) are within such undersigned’s powers, have been duly authorized, are not in contravention of law or the terms of its articles of incorporation or bylaws or other organic documents of the parties thereto, as applicable, and except as have been previously obtained do not require the consent or approval, material to the amendments contemplated in this Amendment, of any governmental body, agency or authority, and the Amended Credit Agreement will constitute the valid and binding obligations of such undersigned parties enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law), (b) the representations and warranties set forth in Article 6 of the Amended Credit Agreement are true and correct in all material respects on and as of the Sixth Amendment Effective Date (except to the extent such representations specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date), (c) there have been no changes to any Credit Party’s constitutional documents since August 21, 2020, and (d) on and as of the Sixth Amendment Effective Date, after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
18. Except as specifically set forth above, this Amendment shall not be deemed to amend or alter in any respect the terms and conditions of the Credit Agreement (including without limitation all conditions and requirements for Advances and any financial covenants), any of the Notes issued thereunder or any of the other Loan Documents. Nor shall this Amendment constitute a waiver or release by the Agent or the Lenders of any right, remedy, Default or Event of Default under or a consent to any transaction not meeting the terms and conditions of the Credit Agreement, any of the Notes issued thereunder or any of the other Loan Documents. Furthermore, this Amendment shall not affect in any manner whatsoever any rights or remedies of the Lenders with respect to any other non-compliance by Borrower with the Credit Agreement or the other Loan Documents, whether in the nature of a Default or Event of Default, and whether now in existence or subsequently arising, and shall not apply to any other transaction.
19. MD Insider, Inc., Accolade 2ndMD LLC, and 1st.MD, LLC, parties to that certain Guaranty, dated as of September 17, 2019 (the “Guaranty”) hereby ratify and confirm their obligations under the Amended Credit Agreement and the applicable Guaranty, and agrees that the Guaranty remains in full force and effect after giving effect to the effectiveness of this Amendment, subject to no setoff, defense or counterclaim. MD Insider, Inc., Accolade 2ndMD LLC, and 1st.MD, LLC confirm that this reaffirmation is not required by the terms of the Guaranty and need not be obtained in connection with any prior or future amendments or extensions of additional credit to Borrower.
20. Borrower and each other Credit Party hereby acknowledges and agrees that this Amendment and the amendments contained herein do not constitute any course of dealing or other basis for altering any obligation of Borrower, any other Credit Party, or any other party or any right, privilege or remedy of the Lenders under the Credit Agreement, any other Loan Document, any other agreement or document, or any contract or instrument.
21. Except as specifically defined to the contrary herein, capitalized terms used in this Amendment shall have the meanings set forth in the Credit Agreement.
22. This Amendment is a Loan Document.
23. This Amendment may be executed in counterparts in accordance with Section 13.9 of the Credit Agreement.
24. AS FURTHER CONSIDERATION FOR THE AGREEMENTS AND UNDERSTANDINGS HEREIN, EACH OF THE CREDIT PARTIES HEREBY RELEASES AGENT, EACH LENDER, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS FROM ANY LIABILITY, CLAIM, RIGHT OR CAUSE OF ACTION WHICH NOW EXISTS, OR HEREAFTER ARISES, WHETHER KNOWN OR UNKNOWN, ARISING FROM OR IN ANY WAY RELATED TO FACTS IN EXISTENCE AS OF THE DATE HEREOF. BY WAY OF EXAMPLE AND NOT LIMITATION, THE FOREGOING INCLUDES ANY CLAIMS IN ANY WAY RELATED TO ACTIONS TAKEN OR OMITTED TO BE TAKEN BY AGENT OR ANY LENDER UNDER THE LOAN DOCUMENTS, THE BUSINESS RELATIONSHIP WITH AGENT AND/OR ANY LENDER AND ALL OTHER OBLIGATIONS OF ANY NATURE OR UNDERSTANDINGS (ACTUAL OR ALLEGED), ANY BANKING RELATIONSHIPS THAT ANY CREDIT PARTY HAS OR MAY HAVE HAD WITH AGENT OR ANY LENDER AT ANY TIME AND FOR ANY REASON. It is understood by each of the Credit Parties and it is each Credit Party’s intention that the release set forth in the preceding paragraph (the “Release Paragraph”) shall be effective as a full and final accord and satisfactory release of each and every matter specifically referred to in the Release Paragraph. In furtherance of this intention, each Credit Party acknowledges that it is familiar with, and upon advice of counsel, does hereby waive, any and all rights they may have or acquired under California Civil Code Section 1542, which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
25. This Amendment shall be construed in accordance with and governed by the laws of the State of California.
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Samples: Credit Agreement (Accolade, Inc.)
Erroneous Payments. (a) Each Lender and each Issuing Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRBapplicable Overnight Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of including, with-out limitation, any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.16 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Lender, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender (as applicable) to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRBapplicable Overnight Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender, as applicable, with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent the Administrative Agent or any of its Affiliates receives funds from (or at the direction of) any Loan Party in respect of any such Erroneous Payment is, and solely or such Payment is made with respect or on account of the proceeds of a payment made by (or at the direction of) any Loan Party to the amount of such Erroneous Payment that is, comprised of funds received by such Administrative Agent from the Borrower or any other Loan Party for of its Affiliates in accordance with the purpose terms of making such Erroneous Paymentthis Agreement.
(d) Each party’s obligations under this Section 9.22 10.16 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of a Lender or Issuing Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentParties.
(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Collateral Agent. US-DOCS\129134537.4 118773011_2
(e) Each party’s obligations under this Section 9.22 11 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. US-DOCS\129134537.4 118773011_2 Fax To: (000) 000-0000 Date: _____________________ From Account #________________________________ To Account #__________________________________________________ (Deposit Account #) (Loan Account #) Principal $____________________________________ and/or Interest $________________________________________________ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account #________________________________ To Account #__________________________________________________ (Loan Account #) (Deposit Account #) Amount of Advance $___________________________ All of each Loan Party’s representations and warranties in the Loan and Security Agreement are true and correct in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Beneficiary Name: _____________________________ Amount of Wire: $ Beneficiary Bank: ______________________________ Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: US-DOCS\129134537.4 118773011_2 Authorized Signature: ___________________________ 2nd Signature (if required): _______________________________________ Print Name/Title: ______________________________ Print Name/Title: ______________________________________________ Telephone #: Telephone #: US-DOCS\129134537.4 118773011_2 TO: SLR INVESTMENT CORP., as Collateral Agent and Lender FROM: VAPOTHERM, INC. The undersigned authorized officer (“Officer”) of VAPOTHERM, INC. (“Borrower”)., in his capacity as an authorized officer of the Borrower and not in his individual capacity, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement dated as of February 18, 2022 by and among Borrower, the Guarantors, Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),
Appears in 1 contract
Erroneous Payments. (a) Each Lender Purchaser hereby agrees that (i) if any the Collateral Agent notifies such Lender Purchaser that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender Purchaser from such the Collateral Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender Purchaser (whether or not known to such LenderPurchaser) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Purchaser shall promptly, but in no event later than one Business Day [***] thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender Purchaser shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Collateral Agent to any Lender Purchaser under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Purchaser hereby further agrees that if it receives an Erroneous Payment a payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Collateral Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender Purchaser otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Purchaser is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender Purchaser shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender Purchaser agrees that, in each such case, it shall promptly (and, in all events, within one Business Day [***] of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day [***] thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and Seller Parties each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Collateral Agent’s rights and remedies under this Section 11.09), the Agents Collateral Agent shall be subrogated to all the rights of such Lender Purchaser with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Seller Parties, except, in each casecase and solely with respect to subsection (y) of this clause (c), to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Collateral Agent from the Borrower or any other Loan Party Seller Parties for the purpose of making such Erroneous Paymentprepaying, repaying, discharging or otherwise satisfying any Obligations owed by the Seller Parties.
(d) In addition to any rights and remedies of the Collateral Agent provided by law, Collateral Agent shall have the right, without prior notice to any Purchaser, any such notice being expressly waived by such Purchaser to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 11.09 and which has not been returned to the Collateral Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), 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 Collateral Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Purchaser. Collateral Agent agrees promptly to notify the Purchaser after any such setoff and application is made by Collateral Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 11.09 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Commitments Transaction Documents, or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Administrative Agent notifies such Lender that such Administrative Agent has determined in its sole discretion that any funds received by such Lender from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such LenderLender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 10.23 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Samples: Revolving Credit Agreement (NexPoint Residential Trust, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Xxxxxx notifies Borrower, Participant, assignee of any Agent notifies such Lender party hereto or other recipient that such Agent Xxxxxx has determined in its sole discretion that any funds received by such recipient from Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Lender in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Lender in accordance with banking industry rules on interbank compensation from time to time in effect effect. Any Payment shall at all times remain the property of Lender and shall be held in trust by the applicable Unintended Recipient for the benefit of Lender until repaid to Lender pursuant to this Section 11.13(a)(i).
(iii) to To the extent permitted by applicable law, such Lender neither Borrower nor any other party hereto (other than Lender) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Lender for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each .
(ii) A notice from Lender agrees thatto any Unintended Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) If an Unintended Recipient receives a Payment from Lender (or any of its Affiliates)
(i) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Lender(or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(ii) that was not preceded or accompanied by a Payment Notice, or
(iii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Lender to the contrary. Upon demand from Lender, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s Without prejudice to the survival of any other agreement of Borrower hereunder, the covenants and obligations under of Borrower contained in this Section 9.22 11.13 shall survive the resignation or replacement of the Agents, the termination of this Agreement, any assignment permitted hereunder, and/or the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Facility Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Mr. Cooper Group Inc.)
Erroneous Payments. (a) Each The Lender hereby agrees that (i) if any the Collateral Agent notifies in writing such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Collateral Agent may not make any such demand under this clause (a)(i) with respect to an Erroneous Payment unless such demand is made within two Business Days of the date of receipt of such Erroneous Payment by the Lender), such Lender shall promptly, but in no event later than one two Business Day thereafterDays after receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made, in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (xi) that is in a different amount than, or on a different date from, that specified in a written notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (ziii) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has shall have been presumed to have been made (and that it is deemed absent written confirmation from the Collateral Agent to have knowledge of such error at the time of receipt of such Erroneous Paymentcontrary) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafterafter receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), ) such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (yii) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (ziii) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Holdings hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 7.11), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount amount, and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, Holdings except to the extent that the funds used to make such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds were received by such Agent from the Borrower or any other Loan Party for Holdings in repayment of the purpose of making such Erroneous PaymentObligations.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 7.11 and which has not been returned to the 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 but excluding trust accounts), 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 Administrative Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender. Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by Administrative Agent; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 7.11 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under this Agreement or any other Transaction Document.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Stepstone Private Credit Fund LLC)
Erroneous Payments. 143
(a) Each Lender hereby agrees If the Agent determines (which determination shall be conclusive and binding, absent manifest error) that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted to, or otherwise erroneously or mistakenly received by, such any funds to any Lender (whether or not such transmittal was known to by such Lender) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”) and the Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by the Agent, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and Effective Rate.
(iib) to To the extent permitted by applicable law, such each Lender shall agrees not to assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliatesportion thereof) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments receivedPayment (or any portion thereof) (including, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this This Section 9.22 10.5 shall survive the resignation or replacement of the AgentsAgent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof)) under any Loan Document.
(d) For purposes of this Section 10.5, the term “Lender” includes each Issuing Lender.
Appears in 1 contract
Erroneous Payments. (ai) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 9.14 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCompany.
(div) Each party’s obligations under this Section 9.22 9.14 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
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Erroneous Payments. (ai) Each Lender and each Issuing Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one five Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any Issuing Lender under this clause (a) shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliatesaffiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliatesaffiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one five Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party hereby agrees parties hereto agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; Obligor, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from (i) the Borrower or any other Loan Party Obligor or (ii) the proceeds of realization from the enforcement of one or more Credit Documents against or in respect of one or more of the Obligors, in each case, for the purpose of making such Erroneous Payment.
(div) The Borrowers hereby agree that in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender with respect to such amount.
(v) Each party’s obligations under this Section 9.22 16.15 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Secured Obligations (or any portion thereof)) under any Credit Document.”
2.14 Schedule G Schedule G of the Credit Agreement is hereby deleted and replaced with Schedule G attached hereto.
ARTICLE 3 CONDITION PRECEDENT
3.1 Condition Precedent to Effectiveness of this Amending Agreement. This amending agreement shall become effective upon:
(a) this agreement shall have been executed and delivered by the Borrowers, the Administrative Agent and the Lenders;
(b) each Obligor shall have executed and delivered to the Administrative Agent a confirmation of Credit Documents in form and substance satisfactory to the Lenders, acting reasonably;
(c) Equinox shall have completed the Acquisition of Premier Gold;
(d) the Administrative Agent has received true and complete copies of the Mercedes Documents certified by an officer of Equinox;
(e) all outstanding Indebtedness of the Premier Obligors which is not Permitted Indebtedness shall have been permanently repaid and cancelled (and, for the avoidance of doubt, the provision of a wire confirmation to the Administrative Agent in respect of the payment of such Indebtedness shall satisfy this condition) and all guarantees, security agreements and intercreditor agreements executed and delivered under or in connection therewith shall have been released and discharged and arrangements satisfactory to the Administrative Agent, acting reasonably, for the discharge of all attendant security registrations shall have been made and all collateral security in connection therewith shall have been returned to the Borrower; and
(f) the Borrower shall have paid to the Administrative Agent, for and on behalf of the Lenders party to this agreement, all fees and expenses (including the fees and expenses of counsel) required to be paid in connection with the Credit Agreement and the fee letter of even date executed by Equinox and the Administrative Agent.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) or Issuing Bank pursuant to the foregoing shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Obligor hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan PartyObligor; exceptprovided that this Section 8.09(c) shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Secured Obligations of the Borrower relative to the amount (and/or timing for payment) of the Secured Obligations that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, Section 8.09(b) and this Section 8.09(c) shall not apply to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent or applicable Lender or Issuing Bank from the Borrower or any other Loan Party Obligor for the purpose of making such Erroneous Payment.
(d) payment in respect of the Secured Obligations. Each party’s obligations under this Section 9.22 pursuant to the foregoing shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, an Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Blue Owl Capital Corp III)
Erroneous Payments. (a) Each Lender and Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) or Issuing Bank pursuant to the foregoing shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Obligor hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan PartyObligor; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment provided that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).8.038.09
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) for the avoidance of doubt, an Erroneous Payment shall not be deemed to pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower or any other Loan Party; except, in each case, hereunder if the Borrower has not made a payment to the extent such Erroneous Payment is, and solely with Administrative Agent in respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from obligations in accordance with the Borrower or any other Loan Party for the purpose of making such Erroneous Paymentterms hereof.
(d) Each party’s obligations under this Section 9.22 7.11 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations hereunder (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Ohio Power Co)
Erroneous Payments. (ai) Each Lender and Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or Issuing Bank under this clause (a) Section 8.14 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender and Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(div) Each party’s obligations under this Section 9.22 8.14 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Roche or any Agent notifies such Lender other Person (notwithstanding the terms of the Assignment Agreement (as applicable) or any other payment instructions specified by Purchaser from time to time) makes any payment in respect of the Purchased Commercial Payments that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent is owed to Purchaser as a Purchased Commercial Payment hereunder, to Seller (or to any of its Affiliates were erroneously transmitted toAffiliates) instead of to Purchaser, then (1) Seller shall hold (or cause such Affiliate to hold) such payment in trust for the sole benefit of Purchaser; (2) Seller (or such Affiliate) shall have no right, title or interest whatsoever in such payment and shall not create or suffer to exist any Lien thereon; and (3) Seller (or such Affiliate) promptly, and in any event no later than [*] Business Days following the receipt by Seller (or such Affiliate) of such payment, shall remit, or otherwise erroneously or mistakenly received bycause to be remitted, such Lender (whether or not known an amount equal to such Lenderpayment to the Purchaser Account, without Set-off, by wire transfer of immediately available funds, in the exact form received with all necessary endorsements.
(ii) If Roche takes (whether as 1) any Set-off in full or partial satisfaction of a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (judgment against Seller or a portion thereof)settlement with Seller, (2) any Set-off resulting from Seller’s breach of the Roche APA or this Agreement for which Roche may otherwise be entitled to take or claim based on Seller’s breach of the Roche APA, or the Assignment Agreement, as applicable, or (3) any other Set-off based on other amounts Seller allegedly owes Roche, in any case where such Lender Set-off has the effect of reducing the amount of any Commercial Payment otherwise required to be paid by Roche to Purchaser pursuant to the Assignment Agreement, then, without limiting any other rights or remedies of Purchaser, Purchaser shall promptly, but in no event later than one Business Day thereafter, return have the right to such Agent credit and set-off against any Affitech Milestone Payments otherwise payable under Section 2.2 the amount of any such Erroneous Payment Set-off taken by Roche.
(or portion thereofiii) as If Seller fails to which such a demand was made, in same day funds timely comply with its obligations under the foregoing clause (in the currency so receivedi), together with then all amounts not timely paid by the due date provided therein shall accrue interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender to due through but excluding the date such amount payment in full (together with all interest thereon) is repaid made to such Agent Purchaser, at a rate, calculated on a 365-day or 366-day basis, as applicable, equal to the then-current prime rate of interest quoted in same day funds at the greater Money Rates section of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of seton-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater line edition of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time Wall Street Journal (at xxxx://xxx.xxxxxxx.xxx.xxx) plus [*], compounded annually, not to time in effectexceed the maximum interest that may be charged under Applicable Law.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees If the Agent determines (which determination shall be conclusive and binding, absent manifest error) that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted to, or otherwise erroneously or mistakenly received by, such any funds to any Lender (whether or not such transmittal was known to by such Lender) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”) and the Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by the Agent, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and Effective Rate.
(iib) to To the extent permitted by applicable law, such each Lender shall agrees not to assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliatesportion thereof) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments receivedPayment (or any portion thereof) (including, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this This Section 9.22 8.5 shall survive the resignation or replacement of the AgentsAgent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof)) under any Loan Document.
(d) For purposes of this Section 8.5, the term “Lender” includes each Issuing Lender.
Appears in 1 contract
Erroneous Payments. (a1) Each Lender and each L/C Issuer hereby agrees that (i) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or L/C Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or L/C Issuer (whether or not known to such LenderLender or L/C Issuer) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or L/C Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Base Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any L/C Issuer under this clause (a) shall be conclusive, absent manifest error.
(b2) Without limiting immediately preceding clause (ai), each Lender and each L/C Issuer hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or L/C Issuer otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each L/C Issuer agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Base Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c3) The Borrower Borrowers and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower Borrowers or any other Loan Party unless, for the purpose avoidance of making doubt, such Erroneous PaymentPayment (or portion thereof) that is not recovered from such Lender or L/C Issuer is with respect to any funds paid by any Borrower Party to the Administrative Agent, in which case such Erroneous Payment shall be deemed to be an optional prepayment of the Obligations owed to such Lender or L/C Issuer paid in accordance with this Agreement.
(d4) Each party’s obligations under this Section 9.22 9.03(e) shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Samples: Credit Agreement (Atotech LTD)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such or on behalf of the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 9.12(a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any or on behalf of the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) Each Lender hereby agrees that, to the extent it fails to return any Erroneous Payment to the Administrative Agent pursuant to, and within the time periods required by, clauses (a) or (b) above, the Administrative Agent (or its Affiliates) is authorized at any time and from time to time thereafter, to the fullest extent permitted by law, to set off and apply any and all deposits of such Lender (general or special, time or demand, provisional or final) at any time held by or on behalf of the Administrative Agent (or its Affiliate, including by branches and agencies of the Administrative Agent, wherever located) for the account of such Lender against any such amounts.
(d) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(de) Each party’s obligations under this Section 9.22 9.12 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Credit Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; ), individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Obligor hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptObligor, in each case, except to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentObligor.
(d) Each party’s obligations under this Section 9.22 8.14 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Total Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Credit Document.
Appears in 1 contract
Erroneous Payments. (ai) Each Lender and L/C Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Xxxxxx from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender or L/C Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or L/C Issuer under this clause (a) Section 9.13 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and L/C Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and L/C Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or L/C Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment 169 (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making satisfying such Erroneous PaymentObligations.
(d) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Erroneous Payments. (a) Each Lender and Issuing Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender, as applicable, shall promptly, but in no event later than one two (2) Business Day thereafterDays thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender, as applicable, to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or such Issuing Lender, as applicable, shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or Issuing Lender under this clause (a) Section 9.12 shall be conclusive, absent manifest error.
error.(b) (c) (d) (b) Without limiting immediately preceding clause (a), each Each Lender and Issuing Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or such Issuing Lender, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two (2) Business Day thereafterDays thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
effect.(e) (cf) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereofg).
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether or not known to such Lender) (whether received as a payment, prepayment or repayment of principal, interest, fees fees, distribution or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, promptly but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, and upon demand from such the Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Agent’s rights and remedies under this Section 11.20), the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Agent provided by law, Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 11.20 and which has not been returned to the Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), 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 Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender. Agent agrees promptly to notify the Lender after any such setoff and application made by Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 11.20 shall survive the resignation or replacement of the AgentsAgent or any transfer of right or obligations by, or the replacement of, a Lender, the termination of the Revolving Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Financing Document.
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (Shimmick Corp)
Erroneous Payments. (a) 1. Each Lender Purchaser hereby agrees that (i) if any Agent the Administrator notifies such Lender Purchaser that such Agent the Administrator has determined in its sole discretion that any funds received by such Lender Purchaser from such Agent the Administrator or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Purchaser (whether or not known to such Lender) Purchaser (whether as a payment, prepayment or repayment of principalCapital, interestDiscount, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Purchaser shall promptly, but in no event later than one Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender Purchaser shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Agent the Administrator for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent the Administrator to any Lender Purchaser under this clause (a) shall be conclusive, absent manifest error.
(b) 2. Without limiting immediately preceding clause (a), each Lender Purchaser hereby further agrees that if it receives an Erroneous Payment from any Agent the Administrator (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent the Administrator (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Purchaser further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Purchaser shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent the Administrator of such occurrence and, upon demand from such Agentthe Administrator, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender Purchaser to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) 3. The Borrower Seller and each other Loan Party Servicer hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrator shall be subrogated to all the rights of such Lender Purchaser with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Seller or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations Servicer (or any portion Affiliate thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Lender notifies Borrower, Participant, assignee of any Agent notifies such party hereto or other recipient that Lender that such Agent has determined in its sole discretion that any funds received by such recipient from Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Lender in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Lender in accordance with banking industry rules on interbank compensation from time to time in effect effect. Any Payment shall at all times remain the property of Lender and shall be held in trust by the applicable Unintended Recipient for the benefit of Lender until repaid to Lender pursuant to this Section 11.13(a)(i).
(ii) to To the extent permitted by applicable law, such Lender neither Borrower nor any other party hereto (other than Lender) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Lender for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each .
(iii) A notice from Lender agrees thatto any Unintended Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) If an Unintended Recipient receives a Payment from Lender (or any of its Affiliates)
(i) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Lender(or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(ii) that was not preceded or accompanied by a Payment Notice, or
(iii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Lender to the contrary. Upon demand from Lender, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s Without prejudice to the survival of any other agreement of Borrower hereunder, the covenants and obligations under of Borrower contained in this Section 9.22 11.13 shall survive the resignation or replacement of the Agents, the termination of this Agreement, any assignment permitted hereunder, and/or the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Facility Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Mr. Cooper Group Inc.)
Erroneous Payments. (a) Each Lender Buyer hereby agrees that (ix) if any Agent notifies such Lender Buyer that such Agent has determined in its sole discretion that any funds received by such Lender Buyer from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Buyer (whether or not known to such LenderBuyer) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Buyer shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in Dollars, and if such Buyer fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to Agent by such Lender Business Day, such Buyer shall also pay Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender Buyer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of Agent to any Buyer under this subsection (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Buyer hereby further agrees that if it receives an Erroneous Payment from Agent (or any of its Affiliates) (i) that is in a different amount than, or on a different date from, that which is required to be paid to such Buyer pursuant to the terms hereof or that which is specified in a notice of payment sent by Agent (or any of its Affiliates) with respect to such Erroneous Payment (a “Erroneous Payment Notice”), (ii) that was not preceded or accompanied by an Erroneous Payment Notice, or (iii) that such Buyer otherwise becomes aware was transmitted, or received, in error or mistake (in whole or in part), in each case, an error has been made with respect to such Erroneous Payment, and to the 118109294\V-13 extent permitted by applicable law, such Buyer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Buyer agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in Dollars, and if such Buyer fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to Agent by such Lender Business Day, such Buyer shall also pay Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Buyer further authorizes and agrees that in the event an Erroneous Payment (or portion thereof) is not recovered from such Buyer that has received such Erroneous Payment (or portion thereof) and Agent has received amounts that are due and owing to such Buyer which Agent is required to remit to such Buyer, Agent may offset such amounts by the equivalent amount of Erroneous Payments received by such Buyer and, as applicable, return such amounts to the applicable payor.
(c) The Borrower and each other Loan Party Seller hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Buyer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender Buyer with respect to such amount amount, and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptSeller, in each case, except to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party Seller for the purpose purposes of making such Erroneous Paymentsatisfying an Obligation.
(d) Each party’s obligations under this Section 9.22 47 shall survive the resignation or replacement of the AgentsAgent, the termination of the Commitments Agreement or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Program Document.
(v) The first sentence of the loan level representation in Schedule 1, paragraph (d) of the Agreement is hereby deleted and replaced in its entirety with the following:
Appears in 1 contract
Samples: Master Repurchase Agreement (Rocket Companies, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Borrowers or the Collateral Agent or any of its their respective Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Borrower Representative or the Collateral Agent (as applicable) the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Borrowers or the Collateral Agent (or any of its their respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Borrowers or the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”as applicable), (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on 85 4885-4330-5790v.25 “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Borrowers or the Collateral Agent (as applicable) the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Representative and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Collateral Agent’s rights and remedies under this Section 11.11), the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any outstanding Obligations; provided, that this Section 11.11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the outstanding Obligations owed relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Borrower Representative or any other Loan Partythe Collateral Agent (as applicable); exceptprovided, in each casefurther, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Collateral Agent from the Borrower or any other Loan Party for Representative with respect to the purpose of making such Erroneous PaymentObligations hereunder.
(d) In addition to any rights and remedies of the Collateral Agent provided by law, Collateral Agent (or its designee) shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 11.11 and which has not been returned to the Borrowers or the Collateral Agent (or its designee) as applicable, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), 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 Collateral Agent (or its designee) or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender. The Collateral Agent agrees promptly to notify the Lender after any such setoff and application made by the Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 11.11 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Credit Document.
(f) Notwithstanding anything to the contrary in this Section 11.11, this Agreement or in any other Credit Document, the Borrowers shall have no obligations, liabilities or responsibilities for any actions, consequences or remediation (including the repayment or recovery of any amounts) contemplated by this Section 11.11 with respect to any such Erroneous Payments (and, for the avoidance of doubt, it is understood and agreed that if the Borrowers have paid principal or any other amounts owed pursuant to this Agreement or any other Credit Document, nothing in this Section 11.11 (or Section 12.5 (or any equivalent provision) in connection therewith) shall require the Borrowers to pay additional amounts that are duplicative of any such previously paid amounts).. 86 4885-4330-5790v.25
Appears in 1 contract
Samples: Senior Secured Loan Agreement (Greenidge Generation Holdings Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Lender notifies Borrower, Participant, assignee of any Agent notifies such party hereto or other recipient that Lender that such Agent has determined in its sole discretion that any funds received by such recipient from Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Lender in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Lender in accordance with banking industry rules on interbank compensation from time to time in effect effect. Any Payment shall at all times remain the property of Lender and shall be held in trust by the applicable Unintended Recipient for the benefit of Lender until repaid to Lender pursuant to this Section 11.13(a)(i).
(ii) to To the extent permitted by applicable law, such Lender neither Borrower nor any other party hereto (other than Lender) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Lender for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each .
(iii) A notice from Lender agrees thatto any Unintended Recipient under this clause shall be conclusive, absent manifest error.
(iv) If an Unintended Recipient receives a Payment from Lender (or any of its Affiliates)
(v) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Lender(or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(vi) that was not preceded or accompanied by a Payment Notice, or
(vii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Lender to the contrary. Upon demand from Lender, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(ca) The Borrower and each other Loan Party hereby agrees that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(db) Each party’s Without prejudice to the survival of any other agreement of Borrower hereunder, the covenants and obligations under of Borrower contained in this Section 9.22 11.13 shall survive the resignation or replacement of the Agents, the termination of this Agreement, any assignment permitted hereunder, and/or the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Facility Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Mr. Cooper Group Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; ), individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) received by such Lender as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate overnight bank funding rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.determined
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that that, if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate overnight bank funding rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all of the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent that such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the of Borrower or any other Loan Party for the purpose of making such Erroneous PaymentParty.
(d) Each party’s obligations under this Section 9.22 2.12 shall survive the resignation or replacement of Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document. 3.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Lender notifies Borrower, Participant, assignee of any Agent notifies such party hereto or other recipient that Lender that such Agent has determined in its sole discretion that any funds received by such recipient from Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Lender in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Lender in accordance with banking industry rules on interbank compensation from time to time in effect effect. Any Payment shall at all times remain the property of Lender and shall be held in trust by the applicable Unintended Recipient for the benefit of Lender until repaid to Lender pursuant to this Section 11.13(a)(i).
(ii) to To the extent permitted by applicable law, such Lender neither Borrower nor any other party hereto (other than Lender) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Lender for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each .
(iii) A notice from Lender agrees thatto any Unintended Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) If an Unintended Recipient receives a Payment from Lender (or any of its Affiliates)
(i) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Lender (or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(ii) that was not preceded or accompanied by a Payment Notice, or
(iii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Lender to the contrary. Upon demand from Lender, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s Without prejudice to the survival of any other agreement of Borrower hereunder, the covenants and obligations under of Borrower contained in this Section 9.22 11.13 shall survive the resignation or replacement of the Agents, the termination of this Agreement, any assignment permitted hereunder, and/or the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Facility Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender Managing Agent hereby agrees that (i) if any the Agent notifies such Lender Managing Agent that such the Agent has determined in its sole discretion that any funds received by such Lender Managing Agent from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Managing Agent (whether or not known to such Lender) Managing Agent (whether as a payment, prepayment or repayment of principalCapital, interestDiscount, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Managing Agent shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Managing Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender Managing Agent shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender Managing Agent under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Managing Agent hereby further agrees that if it receives an Erroneous Payment from any the Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Managing Agent further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Managing Agent shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) that was received by such Lender Managing Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower SPV and each other Loan Party Servicer hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Managing Agent that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender Managing Agent with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower SPV or Servicer (or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAffiliate thereof).
(d) Each party’s obligations under this Section 9.22 10.12 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Managing Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations (or any portion thereof)) under any Transaction Document.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Valvoline Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Buyer notifies Seller, participant, assignee of any Agent notifies such Lender party hereto or other recipient that such Agent Buyer has determined in its sole discretion that any funds received by such Lender recipient from such Agent Buyer or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one two (2) Business Day Days thereafter, return to such Agent Buyer the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Buyer in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Buyer in accordance with banking industry rules on interbank compensation from time to time in effect effect, providing in either case the rate shall not exceed the Post-Default Rate. Any Payment shall at all times remain the property of Buyer and shall be held in trust by the applicable Unintended Recipient for the benefit of Buyer until repaid to Buyer pursuant to this Section 45(a)(i).
(ii) to To the extent permitted by applicable law, such Lender neither Seller nor any other party hereto (other than Buyer) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Buyer for the 118706572\V-5 return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that.
(iii) A notice of Buyer to any Unintended Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) If an Unintended Recipient receives a Payment from Buyer (or any of its Affiliates)
(i) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Buyer (or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(ii) that was not preceded or accompanied by a Payment Notice, or
(iii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Buyer to the contrary. Upon demand from Buyer, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one two (2) Business Day Days thereafter, return to such Agent Buyer the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(c) The Borrower and each other Loan Party Seller hereby agrees that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentSeller.
(d) Each party’s Without prejudice to the survival of any other agreement of Seller hereunder, the covenants and obligations under of Seller contained in this Section 9.22 45 shall survive the resignation or replacement termination of this Agreement, any assignment permitted hereunder, the payment in full of the Agents, Repurchase Price and/or the termination of the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Program Document.
Appears in 1 contract
Samples: Master Repurchase Agreement (Rocket Companies, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 7.09 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment erroneous payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment erroneous payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower; provided that this Section 7.09 shall not be interpreted to increase (or accelerate the due date for) the obligations of the Borrower or any other Loan Party; except, hereunder in each case, to the extent such Erroneous Payment is, and solely accordance with respect this Agreement relative to the amount (and/or timing for payment) of such Erroneous obligations that would have been payable had such erroneous Payment that is, comprised of funds received not been made by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAgent.
(d) Each party’s obligations under this Section 9.22 Section 7.09 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)obligations of the Borrower under this Agreement and the other documents to be delivered hereunder.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds EffectiveNYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.11 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds EffectiveNYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.11 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (Opko Health, Inc.)
Erroneous Payments. (a) Each Lender and each Issuing Bank hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 11.11(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Lender Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, is comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Credit Party for the purpose of making such Erroneous Paymentpaying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(d) Each party’s obligations under this Section 9.22 11.11 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each Lender hereby authorizes each Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise payable or distributable by either Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that either Agent has demanded to be returned under this Section 9.19.
(e) Each party’s obligations under this Section 9.22 9.19 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Samples: Senior Subordinate Superpriority Secured Debtor in Possession Credit Agreement (ProSomnus, Inc.)
Erroneous Payments. (ai) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Lxxxxx from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day [***] thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, demand claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation a waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, conclusive absent manifest error.
(bii) Without limiting immediately preceding clause (a)clause, each Lender hereby further agrees that if it receives an Erroneous Payment from any Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation limitation, waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day [***] of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day [***] thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonFor purposes of this clause, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).“
Appears in 1 contract
Samples: Loan and Security Agreement (BridgeBio Pharma, Inc.)
Erroneous Payments. (a) Each The Lender hereby agrees that (i) if any the Collateral Agent notifies in writing such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Collateral Agent may not make any such demand under this clause (a)(i) with respect to an Erroneous Payment unless such demand is made within two (2) Business Days of the date of receipt of such Erroneous Payment by the Lender), such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made, in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (xi) that is in a different amount than, or on a different date from, that specified in a written notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (ziii) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has shall have been presumed to have been made (and that it is deemed absent written confirmation from the Collateral Agent to have knowledge of such error at the time of receipt of such Erroneous Paymentcontrary) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafterafter receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) were Loan and Security Agreement – Grove Collaborative, Inc. 50 erroneously transmitted to such Lender (regardless of whether such Lender knew or should have known of any such error) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than return such Erroneous Payment to Agent within one (1) Business Day thereafterof Agent’s request therefor in United States Dollars, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender at the greater of the Prime Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments received, including any defense based on “discharge for value” or any similar doctrine. Each Lender hereby further agrees that if it receives an Erroneous Payment from Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice sent by Agent with respect to such Erroneous Payment (an “Erroneous Payment Notice”) or (y) that was not preceded or accompanied by an Erroneous Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Erroneous Payment. In any such case, or if Lender otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify Agent of such occurrence and, upon demand from Agent, shall return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a within one (1) Business Day of Agent’s demand was made, in same day funds (in the currency so received), therefor together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Prime Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party . Borrowers hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the any Borrower or any other Loan Party; exceptprovided that this Section 12.12 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Obligations of the Borrowers relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by Agent; provided further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the from, or held on behalf of, a Borrower or any other Loan Party for the purpose of making prepaying, repaying, discharging or otherwise satisfying any Obligations owed by such Borrower. Until such time as the Erroneous Payment.
Payment is repaid in full with interest thereon, any such Lender may, in Agent’s discretion, be treated as a Defaulting Lender for all purposes of Section 12.10 and any payment of principal, interest, fees or other amounts received by Agent that would otherwise be distributable to such Lender pursuant to the terms of Section 2.7(h) or Section 9.9 (dwhether voluntary or mandatory, at maturity or otherwise) Each party’s or received by Agent from a Defaulting Lender, shall be applied at such time or times as may be determined by Agent to the repayment of any Erroneous Payment prior to the application of the same for any other purposes. The obligations under this Section 9.22 12.12 shall survive the resignation or replacement of Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender, the termination of the Commitments Commitment or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Grove Collaborative Holdings, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) Without limitation of any other provision in this Agreement, if at any time the Administrative Agent notifies a Lender or an Issuing Bank that it has made a payment hereunder in error to any Lender or Issuing Bank, whether or not in respect of a Loan, Letter of Credit or any other obligations of the Borrower or any other Loan Party hereunder due and owing by the Borrower or any other Loan Party at such time, where such payment is (1) in excess of the amount so paid by the Borrower or such other Loan Party in respect of such obligation to such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Issuing Bank (whether or not known then owed); or (2) for any reason otherwise erroneously made by the Administrative Agent (such payment referred to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), then in any such event, each Lender shall promptlyor Issuing Bank receiving an Erroneous Payment severally agrees to repay to the Administrative Agent promptly on demand, but in no event later than one two Business Day Days thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) received by such Lender as to which such a demand was made, made in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender it to but excluding the date of payment to the date such amount is repaid to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower . To the extent permitted by applicable Law, each Lender and each other Loan Party hereby agrees that Issuing Bank irrevocably waives any and all defenses, including any “discharge for value” (xunder which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) in the event an or similar defense to its obligation to return any Erroneous Payment (received. The Administrative Agent shall inform each Lender or portion thereof) is not recovered from Issuing Bank promptly upon determining that any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated payment made to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptIssuing Bank comprised, in each casewhole or in part, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such an Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (Phillips 66)
Erroneous Payments. (a) Each Lender and other Secured Party hereby agrees that (ix) if any Administrative Agent notifies such Lender or Secured Party that such Administrative Agent has determined in its sole discretion that any funds received by such Lender or Secured Party from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Secured Party (whether or not known to such Lender or Secured Party), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Secured Party shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Secured Party shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to such Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any such Administrative Agent to any Lender or Secured Party under this clause (a) Section 9.17 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender or Secured Party hereby further agrees that if it receives an Erroneous a Payment from any such Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender or Secured Party agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Secured Party shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Secured Party that has received such Erroneous Payment (or portion thereof) for any reason, the Agents such Administrative Agent shall be subrogated to all the rights of such Lender or Secured Party with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised 216 of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (c) will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(d) Each party’s obligations under this Section 9.22 Section 9.17 shall survive the resignation or replacement of any Administrative Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender or Secured Party, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (Farfetch LTD)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.. 151
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees If the Agent determines (which determination shall be conclusive and binding, absent manifest error) that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously has erroneously, mistakenly or inadvertently transmitted to, or otherwise erroneously or mistakenly received by, such Lender any funds to any Bank (whether or not such transmittal was known to by such LenderBank) (any such funds, whether received as a payment, prepayment prepayment, or repayment of principal, interest, fees fees, distributions, or otherwise; , individually and collectively, a an “Erroneous Payment”) and the Agent subsequently demands the return of such Erroneous Payment (or a any portion thereof), then such Lender Bank shall promptly, but in no event later than one two (2) Business Day thereafterDays after such demand, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was mademade by the Agent, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) amount was received by such Lender Bank to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and Effective Rate.
(iib) to To the extent permitted by applicable law, such Lender shall each Bank agrees not to assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliatesportion thereof) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments receivedPayment (or any portion thereof) (including, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this This Section 9.22 10.7 shall survive the resignation or replacement of the AgentsAgent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations Indebtedness (or any portion thereof)) under any Loan Document.
(d) For purposes of this Section 10.7, the term “Bank” shall (a) exclude each Non-Extending Lender as of the Eighth Amendment Effective Date and (b) include each Issuing Bank.
3. The definition of “Benchmark Replacement Adjustment” in Section 11.10 of the Credit Agreement is amended and restated to read as follows:
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.25 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided that this Section 9.25 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), to the extent such Erroneous Payment is, and solely with respect Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous erroneous Payment that is, comprised of funds received not been made by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAdministrative Agent.
(d) Each party’s obligations under this Section 9.22 9.25 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
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Erroneous Payments. (a) Each Lender and each Issuing Bank hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 11.11(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Lender Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, is comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Credit Party for the purpose of making such Erroneous Paymentpaying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Samples: Credit Agreement (PDC Energy, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 10.13), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 10.13 and which has not been returned to the 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 but excluding trust accounts), 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 Administrative Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender. Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 10.13 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Term Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and Issuing Bank hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such LenderLender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Fed Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each A notice of the Administrative Agent to any Lender agrees thator Issuing Bank under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), if any Lender or Issuing Bank receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) that (x) is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) such Lender or Issuing Bank otherwise becomes aware was transmitted, or received, in error (in whole or in part): (i) (A) in the case of immediately preceding clause (x) or (y), an error shall be presumed to have been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) or (B) in the case of immediately preceding clause (z), an error has been made, in each such case, it with respect to such payment, prepayment or repayment; and (ii) such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of its receipt of such occurrence andpayment, upon demand from such Agentprepayment or repayment, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds details thereof (in reasonable detail) and that it is so notifying the currency so receivedAdministrative Agent pursuant to this Section 8.10(b), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees parties hereto agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.or
(d) Each party’s obligations under this Section 9.22 8.10 shall survive the resignation or replacement of the AgentsAdministrative Agent, any transfer of rights or obligations by (or the replacement of) a Lender, the termination of the Aggregate Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent or the Collateral Agent notifies such Lender that such the Agent or the Collateral Agent, as applicable, has determined in its sole discretion that any funds received by such Lender from such Agent a Secured Party or any of its respective Affiliates (a “Payment Recipient”) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent or the Collateral Agent, as applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date that is two Business Days after the Agent or the Collateral Agent, as applicable, has demanded the return of such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent or the Collateral Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent or the Collateral Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent or the Collateral Agent, as applicable, for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent or the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error has been made (and that it is deemed to have knowledge in the case of such error at the time of receipt of such Erroneous Payment) immediately preceding clause (z)), in each case, with respect to such Erroneous Paymentpayment, prepayment or repayment; and to (ii) such Lender, or the extent permitted by applicable law, such Lender Agent or the Collateral Agent shall not assert (and shall cause any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based other recipient that receives funds on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent or the Collateral Agent of its receipt of such occurrence andpayment, upon demand from such Agentprepayment or repayment, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds details thereof (in reasonable detail) and that it is so notifying the currency so receivedAgent or the Collateral Agent pursuant to this Section 11.13(b), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Each Lender hereby authorizes the Agent or the Collateral Agent to set off, net and each other Loan Party hereby agrees that apply any and all amounts at any time owing to such Lender under any Transaction Document, or otherwise payable or distributable by the Agent or the Collateral Agent to such Lender from any source under or in connection with the Transaction Documents, against any amount due to the Agent or the Collateral Agent under immediately preceding clause (xa) in or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent or the Collateral Agent for any reason, after demand therefor by the Agent or the Collateral Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) for (and/or from any reasonPayment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Agent’s or the Collateral Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent or the Collateral Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the Agents “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent or the Collateral Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Agent, (ii) the Agent or the Collateral Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent or the Collateral Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Agent or the Collateral Agent may reflect in the applicable register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. Subject to Article XV, the Agent or the Collateral Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent or the Collateral Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent or the Collateral Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent or the Collateral Agent may be equitably subrogated, the Agent or the Collateral Agent shall be contractually subrogated to all the rights and interests of such the applicable Lender or Secured Party under the Transaction Documents with respect to such amount and each Erroneous Payment Return Deficiency (ythe “Erroneous Payment Subrogation Rights”).
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Partyparty, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent or Collateral Agent from the Borrower or any other Loan Party Partyparty for the purpose of making a payment in respect of the Obligations, in which case such payment shall discharge and otherwise satisfy the applicable obligation of the Borrower being so paid, prepaid or repaid in accordance with the terms of this Agreement. Notwithstanding anything to the contrary herein, in connection with any Erroneous PaymentPayment (including in connection with any subrogation related thereto), under no circumstances shall the Collateral Agent be deemed a lender-of-record.
(df) To the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations under this Section 9.22 11.13 shall survive the resignation or replacement of the AgentsAgent or the Collateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 1 contract
Samples: Loan and Servicing Agreement (Blue Owl Capital Corp III)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Lender notifies Borrower, Participant, assignee of any Agent notifies such party hereto or other recipient that Lender that such Agent has determined in its sole discretion that any funds received by such recipient from Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Lender in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Lender in accordance with banking industry rules on interbank compensation from time to time in effect effect. Any Payment shall at all times remain the property of Lender and shall be held in trust by the applicable Unintended Recipient for the benefit of Lender until repaid to Lender pursuant to this Section 14.24(a)(i).
(ii) to To the extent permitted by applicable law, such Lender neither Borrower nor any other party hereto (other than Lender) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Lender for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each .
(iii) A notice of Lender agrees thatto any Unintended Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) If an Unintended Recipient receives a Payment from Lender (or any of its Affiliates)
(i) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Lender(or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(ii) that was not preceded or accompanied by a Payment Notice, or
(iii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Lender to the contrary. Upon demand from Lender, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(c) The Borrower and each other Loan Party Borrowers hereby agrees agree that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrowers.
(d) Each party’s Without prejudice to the survival of any other agreement of Borrower hereunder, the covenants and obligations under of Borrower contained in this Section 9.22 14.24 shall survive the resignation or replacement of the Agents, the termination of this Loan Agreement, any assignment permitted hereunder, and/or the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Offerpad Solutions Inc.)
Erroneous Payments. (a) Each Lender and each Issuing Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of including, with-out limitation, any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.16 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Lender, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender (as applicable) to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender, as applicable, with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent the Administrative Agent or any of its Affiliates receives funds from (or at the direction of) any Loan Party in respect of any such Erroneous Payment is, and solely or such Payment is made with respect or on account of the proceeds of a payment made by (or at the direction of) any Loan Party to the amount of such Erroneous Payment that is, comprised of funds received by such Administrative Agent from the Borrower or any other Loan Party for of its Affiliates in accordance with the purpose terms of making such Erroneous Paymentthis Agreement.
(d) Each party’s obligations under this Section 9.22 10.16 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of a Lender or Issuing Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (OPENLANE, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) were erroneously transmitted to such Lender (regardless of whether such Lender knew or should have known of any such error) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than return such Erroneous Payment to Agent within one (1) Business Day thereafterof Agent’s request therefor in United States Dollars, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender at the greater of the Prime Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent for the return of any Erroneous Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. Each Lender hereby further agrees that if it receives an Erroneous Payment from the Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice sent by the Agent with respect to such Erroneous Payment (an “Erroneous Payment Notice”) or (y) that was not preceded or accompanied by an Erroneous Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Erroneous Payment. In any such case, or if Lender otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Agent of such occurrence and, upon demand from the Agent, shall return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a within one (1) Business Day of Agent’s demand was made, in same day funds (in the currency so received), therefor together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Prime Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The . Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the any Borrower or any other Loan Party; except. Until such time as the Erroneous Payment is repaid in full with interest thereon, any such Lender may, in each caseAgent’s discretion, be treated as a Defaulting Lender for all purposes of Section 12.10 and any payment of principal, interest, fees or other amounts received by Agent that would otherwise be distributable to such Lender pursuant to the extent terms of Section 2.7(e) or Section 9.9 (whether voluntary or mandatory, at maturity or otherwise) or received by the Agent from a Defaulting Lender, shall be applied at such time or times as may be determined by Agent to the repayment of any Erroneous Payment is, and solely with respect prior to the amount application of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or same for any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s purposes. The obligations under this Section 9.22 12.12 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments Commitment or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)Obligations.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, Payment and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 8.13), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, the Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 8.13 and which has not been returned to the 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 but excluding trust accounts), 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 the Administrative Agent or any of its Affiliates, branches or agencies thereof to or for the credit or the account of such Lender. The Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by the Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 8.13 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or and the repayment, satisfaction or discharge of all Loan Document Secured Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Franchise Group, Inc.)
Erroneous Payments. (a) (i) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two (2) Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.12 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two (2) Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 10.12 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Loan Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (aSection 11.5(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.5(a) shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Erroneous Payments. (a) Each Lender and each Letter of Credit Issuer hereby agrees that (i) if any the Administrative Agent notifies such Lender or Letter of Credit Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Letter of Credit Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Letter of Credit Issuer (whether or not known to such LenderLender or Letter of Credit Issuer) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Letter of Credit Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or Letter of Credit Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any Letter of Credit Issuer under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender and each Letter of Credit Issuer hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or Letter of Credit Issuer otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or Letter of Credit Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Letter of Credit Issuer agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Each of Holdings and the Borrower agrees, for itself and each other Loan Party hereby agrees Credit Party, that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Letter of Credit Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Letter of Credit Issuer with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; , except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Credit Party for the express purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.16 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Credit Document.
Appears in 1 contract
Samples: Credit Agreement (Air Transport Services Group, Inc.)
Erroneous Payments. (ai) Each Lender and L/C Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Xxxxxx from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender or L/C Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or L/C Issuer under this clause (a) Section 9.13 shall be conclusive, absent manifest error.
(ba) Without limiting immediately preceding clause (a), each Each Lender and L/C Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and L/C Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or L/C Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cb) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making satisfying such Erroneous PaymentObligations.
(dc) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Erroneous Payments. (ai) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 9.14 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower Company and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Company or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(div) Each party’s obligations under this Section 9.22 9.14 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect and if such Lender fails to return the amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (ai) shall be conclusive, absent manifest error.
(b) . Without limiting immediately preceding clause (ai), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence (provided, that a failure by any Lender to notify the Agent of such occurrence shall neither constitute nor be deemed to constitute a breach by such Lender of any of its obligations under this Agreement unless and to the extent such failure resulted from such Xxxxxx’s gross negligence or willful misconduct) and, upon demand from such the Agent, it shall promptly, but in all events no later than 19107526-5 one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect and if such Lender fails to return the amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party . Each Obligor hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment that does not consist of the Borrower’s funds, or to the extent an Erroneous Payment consists of the Borrower’s funds and such Erroneous Payment has been returned to the Borrower, such Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Obligor. Each party’s obligations under this Section 9.22 8.6 shall survive the resignation or replacement of the AgentsAgent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. Successors and Assigns. This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties, provided, that the Borrower may not assign this Agreement or any rights or obligations hereunder without the Agent’s prior written consent and any prohibited assignment shall be null and void ab initio. The Lenders may sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, or any right or remedy under, the Obligations and the Loan Documents. The parties to each assignment shall deliver to the Agent a document evidencing such assignment that includes the names and addresses of such parties and the amount of commitment or Loans being assigned pursuant to such document (“Assignment and Assumption”). The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent or the Collateral Agent notifies such Lender that such the Administrative Agent or the Collateral Agent has determined in its sole discretion that any funds received by such Lender Xxxxxx from such the Administrative Agent or any of its Affiliates or the Collateral Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one fifteen (15) Business Day Days thereafter, return to such the Administrative Agent or the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such fifteenth (15th) Business Day (assuming such Erroneous Payment (or any remaining portion thereof) was received by shall be unpaid as of such Lender date) to the date such amount is repaid to such the Administrative Agent or the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent or the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent or the Collateral Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater A notice of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time or the Collateral Agent to time in effectany Lender under this clause (a) shall be conclusive, absent manifest error.
(cb) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s or the Collateral Agent’s rights and remedies under this Section 10.21), the Agents Administrative Agent or the Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except.
(c) In addition to any rights and remedies of the Administrative Agent or the Collateral Agent provided by law, Administrative Agent or the Collateral Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 10.21 and which has not been returned to the Administrative Agent or the Collateral Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each casecase whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Administrative Agent or the Collateral Agent or any of their Affiliate, branch or agency thereof to or for the extent such Erroneous Payment is, and solely with respect to credit or the amount account of such Erroneous Payment that is, comprised of funds received Lender. Administrative Agent and the Collateral Agent agrees promptly to notify the Lender after any such setoff and application made by such Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repaymentCollateral Agent, satisfaction or discharge as applicable; provided, that the failure to give such notice shall not affect the validity of all Loan Document Obligations (or any portion thereof)such setoff and application.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Ares Commercial Real Estate Corp)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if If Lender notifies Borrower, Participant, assignee of any Agent notifies such party hereto or other recipient that Lender that such Agent has determined in its sole discretion that any funds received by such recipient from Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender recipient (whether or not known to such Lenderrecipient) (any such funds whether as a payment, prepayment or repayment of principal, interest, fees or other amounts; a distribution or otherwise; individually and collectively, a “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Unintended Recipient shall promptly, but in no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Unintended Recipient to the date such amount is repaid to such Agent Lender in same day immediately available funds at the greater of the Federal Funds Pricing Rate and a rate determined by such Agent Lender in accordance with banking industry rules on interbank compensation from time to time in effect effect. Any Payment shall at all times remain the property of Lender and shall be held in trust by the applicable Unintended Recipient for the benefit of Lender until repaid to Lender pursuant to this Section 11.13(a)(i).
(iii) to To the extent permitted by applicable law, such Lender neither Borrower nor any other party hereto (other than Lender) shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent Lender for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each .
(ii) A notice from Lender agrees thatto any Unintended Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) If an Unintended Recipient receives a Payment from Lender (or any of its Affiliates)
(i) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Lender (or any of its Affiliates) with respect to such Payment (a “Payment Notice”),
(ii) that was not preceded or accompanied by a Payment Notice, or
(iii) that such Unintended Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) or any Payment is otherwise inconsistent with such recipient’s or market expectations, in each such case, it an error shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of be presumed to have been made with respect to such error) notify such Agent of such occurrence and, upon Payment absent written confirmation from Lender to the contrary. Upon demand from Lender, such Agent, it Unintended Recipient shall promptly, but in all events no event later than one Business Day thereafter, return to such Agent Lender the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectmade.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event receipt by an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights Unintended Recipient of such Lender with respect to such amount and (y) an Erroneous a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed to such Unintended Recipient by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s Without prejudice to the survival of any other agreement of Borrower hereunder, the covenants and obligations under of Borrower contained in this Section 9.22 11.13 shall survive the resignation or replacement of the Agents, the termination of this Agreement, any assignment permitted hereunder, and/or the Commitments or the repayment, satisfaction or and discharge of all Loan Document Obligations (or any portion thereof)) under any Facility Document.
Appears in 1 contract
Erroneous Payments. (ai) Each Lender and each L/C Issuer hereby agrees that (i) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or L/C Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or L/C Issuer (whether or not known to such LenderLender or L/C Issuer) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or L/C Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Base Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any L/C Issuer under this clause (ai) shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (ai), each Lender and each L/C Issuer hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or L/C Issuer otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each L/C Issuer agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Base Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower Parent and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer under the Loan Documents with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Parent or any other Loan Party; exceptprovided, in each casethat this Section 9.03(d) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; and provided, further, that, to the extent such Erroneous Payment is, and solely with respect to the amount of any such Erroneous Payment that is, comprised of is not recovered from such Lender or L/C Issuer is with respect to any funds received paid by such Agent from the Borrower Parent or any other Loan Party for Restricted Subsidiary to the purpose of making Administrative Agent, such Erroneous PaymentPayment shall in such case be deemed to be an optional prepayment of the Obligations owed to such Lender or L/C Issuer paid in accordance with this Agreement.
(div) Each party’s obligations under this Section 9.22 9.03(d) shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and other Secured Party hereby agrees that (ix) if any Administrative Agent notifies such Lender or Secured Party that such Administrative Agent has determined in its sole discretion that any funds received by such Lender or Secured Party from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Secured Party (whether or not known to such Lender or Secured Party), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Secured Party shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Secured Party shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to such Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any such Administrative Agent to any Lender or Secured Party under this clause (a) Section 9.17 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender or Secured Party hereby further agrees that if it receives an Erroneous a Payment from any such Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender or Secured Party agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Secured Party shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Secured Party that has received such Erroneous Payment (or portion thereof) for any reason, the Agents such Administrative Agent shall be subrogated to all the rights of such Lender or Secured Party with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (c) will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(d) Each party’s obligations under this Section 9.22 9.17 shall survive the resignation or replacement of any Administrative Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender or Secured Party, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Samples: Credit Agreement (Farfetch LTD)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any US-DOCS\129134537.4 118773011_2 reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentParties.
(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Loan Parties relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Collateral Agent.
(e) Each party’s obligations under this Section 9.22 11 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. US-DOCS\129134537.4 118773011_2 Fax To: (000) 000-0000 Date:______________________ VAPOTHERM, INC. From Account # _______________________________ To Account #_______________________________ (Deposit Account #) (Loan Account #) Principal $ ________________________________ and/or Interest $_____________________________ Authorized Signature: ________________________ Phone Number: _____________________________ Print Name/Title: ___________________________ Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outing wire. From Account # _______________________________ To Account #_______________________________ (Deposit Account #) (Loan Account #) Amount of Advance $ ________________________________ All of each Loan Party’s representations and warranties in the Loan and Security Agreement are true and correct in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct all material respects as of such date: Authorized Signature: ________________________ Phone Number: _____________________________ Print Name/Title: ________________________ US-DOCS\129134537.4 118773011_2 Beneficiary name: ______________________________ Amount of Wire: $______________________________ Beneficiary Bank: ______________________________ Account Number: ______________________________ City and State: ________________________________ Beneficiary Bank Transit (ABA) #: _______________ Beneficiary Bank Code (Swift, Sort, Chip, Etc): ________ Intermediary Bank: ___________________________ Transit (ABA) #: ________________________________ For Further Credit to: _________________________________________________________________________________ Special Instruction: __________________________________________________________________________________ By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance withand subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s)were previously received and executed by me (us). Authorized Signature: ____________________________ 2nd Signature (if required): ___________________________ Print Name/Title: _______________________________ Print Name/Title: ___________________________________ Telephone #: ______________ Telephone #: ______________ US-DOCS\129134537.4 118773011_2 TO: SLR INVESTMENT CORP., as Collateral Agent and Lender FROM: VAPOTTHERM, INC. The undersigned authorized officer (“Officer”) of VAPOTHERM, INC. (“Borrower”), in his capacity as an authorized officer of the Borrower and not in his individual capacity, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement dated as of February 18, 2022 by and among Borrower, the Guarantors, Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),
(a) There are no existing defaults or Events of Default, except as noted below;
(b) Except as noted below, all representations and warranties of Xxxxxxxx stated in the Loan Documents are true and correct in all material respects on this date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date.
(c) Borrower, and each of Borrower’s Subsidiaries, has timely filed all required Tax returns and reports, Borrower, and each of Borrower’s Subsidiaries, has timely paid all foreign, federal, state, and material local, Taxes, owed by Borrower, or Subsidiary, except as otherwise permitted pursuant to the terms of Section 5.8 of the Loan Agreement;
(d) Except as noted below, no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Collateral Agent and the Lenders; and
(e) Attached is an updated Perfection Certificate.1 Attached are the required documents, if any, supporting our certification(s). The Officer, on behalf of Xxxxxxxx, further certifies that the attached financial statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year-end audit adjustments as to the interim financial statements.
1) Financial statements Monthly within 30 days Yes No N/A 2) Annual (CPA Audited) statements Within 90 days after FYE Yes No N/A
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment 147 (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Credit Agreement (Invacare Corp)
