Common use of Setoff Rights Clause in Contracts

Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by Borrower at any time or from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agrees, to the fullest extent permitted by Law, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.

Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by Borrower at any time or from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (iA) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (iiB) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the ObligationsObligations (including, without limitation, any cash, credit, deposits, accounts, financial assets, investment property, and/or securities of Borrower which is in transit to or in the possession, custody or control of any agent, bailee or Affiliate of any Lender); except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations; provided, that any set off by WCMA Lender prior to the purchase by any other Lender of a participation in the WCMA Loans pursuant to Section 2.2(c)(v) shall not be shared as provided above, but instead may be retained by WCMA Lender and applied as it shall determine in its sole discretion. Borrower agrees, to the fullest extent permitted by Lawlaw, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff9.5.

Setoff Rights. During (a) Each Designated GM Domestic Entity hereby acknowledges, understands, and agrees that (i) until the continuance earlier of (A) the date on which the Unsecured Exposures shall have been secured by a lien in favor of the applicable GMAC Entities on assets of the GM Domestic Entities pursuant to Section 5 and (B) the first date occurring on or after December 30, 2010 on which no Measured Exposure exceeds the applicable Cap, as set forth in Section 4 below (the earlier of (A) and (B), the “Setoff Rights Reduction Date”), GMAC and each other GMAC Entity (acting on its own or through GMAC on behalf of itself and each other GMAC Entity) is entitled to setoff from time to time any Event or all Specified GMAC Obligations against any or all CONFIDENTIAL TREATMENT [***] Indicates that text has been omitted which is the subject of Defaulta confidential treatment request. This text has been separately filed with the Securities and Exchange Commission Specified GM Obligations and (ii) from and after the Setoff Rights Reduction Date, GMAC and each Lender other GMAC Entity (acting on its own or through GMAC on behalf of itself and each other GMAC Entity) is entitled to setoff from time to time any or all Known Specified GMAC Obligations against any or all Known Specified GM Obligations. (b) If, at any time prior to the Setoff Rights Reduction Date, GMAC asserts in good faith that any Specified GM Obligation is owing or payable by any Designated GM Domestic Entity but the amount of that Specified GM Obligation is unliquidated or otherwise unascertained at any time, the GMAC Entities (or GMAC on behalf of itself and each other GMAC Entity) may, acting in a commercially reasonable manner, estimate the amount thereof and setoff such estimated amount, subject to accounting to the Designated GM Domestic Entities no later than 5 business days after the amount is liquidated or otherwise ascertained. (c) Each GMAC Entity hereby authorized acknowledges, understands, and agrees that GM and each other Designated GM Domestic Entity (acting on its own or through GM on behalf of itself and each other Designated GM Domestic Entity) is entitled to setoff from time to time any or all Known Specified GM Obligations against any or all Known Specified GMAC Obligations. (d) The foregoing rights of setoff are in addition to, and not in limitation of, any other right or remedy available to any of the Designated GM Domestic Entities and the GMAC Entities (including any right of setoff, offset, recoupment, combination of accounts, deduction, counterclaim, retention, or withholding), whether expressly or implicitly arising under this Agreement or any other agreement, instrument, or undertaking, under applicable law, in equity, or otherwise and will be effective and enforceable notwithstanding any other provision to the contrary set forth in this Agreement or any other agreement, instrument, or undertaking between or among one or more GMAC Entities, on the one hand, and one or more Designated GM Domestic Entities, on the other hand. (e) Each party hereby acknowledges, understands, and agrees that the exercise by Borrower GM or any other Designated GM Domestic Entity, on the one hand, or GMAC or any other GMAC Entity, on the other hand, at any time or from time to timetime of rights under this Section 3 will be deemed automatically to satisfy and discharge fully, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries)completely, irrevocably, and (ii) other property at any time held indefeasibly all Specified GM Obligations, Specified GMAC Obligations, Known Specified GM Obligations, or owing by such Lender to or for Known Specified GMAC Obligations, as the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agreescase may be, to the fullest extent permitted by Law, that any Lender or any of the exercise of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffrights.

Setoff Rights. During (a) Each Designated GM Domestic Entity hereby acknowledges, understands, and agrees that (i) until the continuance earlier of (A) the date on which the Unsecured Exposures shall have been secured by a lien in favor of the applicable GMAC Entities on assets of the GM Domestic Entities pursuant to Section 5 and (B) the first date occurring on or after December 30, 2010 on which no Measured Exposure exceeds the applicable Cap, as set forth in Section 4 below (the earlier of (A) and (B), the “Setoff Rights Reduction Date”), GMAC and each other GMAC Entity (acting on its own or through GMAC on behalf of itself and each other GMAC Entity) is entitled to setoff from time to time any Event or all Specified GMAC Obligations against any or all Specified GM Obligations and (ii) from and after the Setoff Rights Reduction Date, GMAC and each other GMAC Entity (acting on its own or through GMAC on behalf of Defaultitself and each other GMAC Entity) is entitled to setoff from time to time any or all Known Specified GMAC Obligations against any or all Known Specified GM Obligations. (b) If, at any time prior to the Setoff Rights Reduction Date, GMAC asserts in good faith that any Specified GM Obligation is owing or payable by any Designated GM Domestic Entity but the amount of that Specified GM Obligation is unliquidated or otherwise unascertained at any time, the GMAC Entities (or GMAC on behalf of itself and each Lender other CONFIDENTIAL TREATMENT [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the Securities and Exchange Commission GMAC Entity) may, acting in a commercially reasonable manner, estimate the amount thereof and setoff such estimated amount, subject to accounting to the Designated GM Domestic Entities no later than 5 business days after the amount is liquidated or otherwise ascertained. (c) Each GMAC Entity hereby authorized acknowledges, understands, and agrees that GM and each other Designated GM Domestic Entity (acting on its own or through GM on behalf of itself and each other Designated GM Domestic Entity) is entitled to setoff from time to time any or all Known Specified GM Obligations against any or all Known Specified GMAC Obligations. (d) The foregoing rights of setoff are in addition to, and not in limitation of, any other right or remedy available to any of the Designated GM Domestic Entities and the GMAC Entities (including any right of setoff, offset, recoupment, combination of accounts, deduction, counterclaim, retention, or withholding), whether expressly or implicitly arising under this Agreement or any other agreement, instrument, or undertaking, under applicable law, in equity, or otherwise and will be effective and enforceable notwithstanding any other provision to the contrary set forth in this Agreement or any other agreement, instrument, or undertaking between or among one or more GMAC Entities, on the one hand, and one or more Designated GM Domestic Entities, on the other hand. (e) Each party hereby acknowledges, understands, and agrees that the exercise by Borrower GM or any other Designated GM Domestic Entity, on the one hand, or GMAC or any other GMAC Entity, on the other hand, at any time or from time to timetime of rights under this Section 3 will be deemed automatically to satisfy and discharge fully, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries)completely, irrevocably, and (ii) other property at any time held indefeasibly all Specified GM Obligations, Specified GMAC Obligations, Known Specified GM Obligations, or owing by such Lender to or for Known Specified GMAC Obligations, as the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agreescase may be, to the fullest extent permitted by Law, that any Lender or any of the exercise of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffrights.

Setoff Rights. During (a) In addition to any rights and remedies of the continuance of any Lender provided by law, if an Event of DefaultDefault shall have occurred and be continuing, each Lender Lender, the Administrative Agent, the Issuing Bank, and each of their respective Affiliates is hereby authorized by Borrower at any time or and from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agrees, to the fullest extent permitted by Lawapplicable law, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided and apply any and all deposits (general or special, time or demand, provisional or final, in this Section 8.5. In the event that whatever currency, and wherever held) at any Defaulting Lender shall exercise time held and other obligations (in whatever currency) at any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated time owing by such Defaulting Lender from its Lender, the other funds and deemed held in trust for the benefit of Lenders, the Administrative Agent, the LC IssuersIssuing Bank or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, the other Lenders, the Administrative Agent or the Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank, the Administrative Agent or their respective Affiliates may have. Each Lender and the LendersIssuing Bank agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. For purposes of effectuating the setoff rights of the Lender, the Administrative Agent, the Issuing Bank and each of their respective Affiliates pursuant to this paragraph (and for no other purpose), the Borrowers and each Loan Party expressly agree to treat each Lender, the Administrative Agent, the Issuing Bank and each of their respective Affiliates (including but not limited to each of their respective branches and offices) as a single entity; it being the express intent of the Borrowers and each Loan Party to maximize the available deposits that may be used to set off against any and all of the obligations of the Borrowers or such Loan Party under this Agreement or any other Loan Document. (b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Credit Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Revolving Credit Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Loans and other amounts owing them, provided that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this §14.1 shall not be construed to apply to (x) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the Defaulting Lender shall provide promptly assignment of or sale of a participation in any of its Revolving Credit Loans or participations in LC Obligations to any assignee or participant, other than to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender Borrowers or any Subsidiary thereof (as to which the provisions of this paragraph shall apply). (c) Each of the Borrowers consents to the foregoing and agrees, to the extent it exercised may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Borrower rights of setoff and counterclaim with respect to such right participation as fully as if such Lender were a direct creditor of setoffsuch Borrower in the amount of such participation.

Setoff Rights. During (a) In addition to any rights and remedies of the continuance of any Lender provided by law, if an Event of DefaultDefault shall have occurred and be continuing, each Lender Lender, the Issuing Bank, and each of their respective Affiliates is hereby authorized by Borrower at any time or and from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agrees, to the fullest extent permitted by Lawapplicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the Issuing Bank or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank or their respective Affiliates may have. Each Lender and the Issuing Bank agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. (b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this §14.1 shall not be construed to apply to (x) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Obligations to any assignee or participant, other than to the Borrowers or any Subsidiary thereof (as to which the provisions of this paragraph shall apply). (c) Each of the Borrowers consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender or any of such Lender’s Affiliates acquiring a participation pursuant to the foregoing arrangements may exercise its right to set off against each Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any amount of such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffparticipation.

Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by Borrower at any time or from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agrees, to the fullest extent permitted by Law, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.

Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by each Borrower at any time or from time to time, with reasonably prompt subsequent notice to such Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (ia) balances held by Lender (or by any Subsidiary of Lender, solely with respect to balances held by such Lender or any of such Lender’s Affiliates entity pursuant to the Supply Agreement) at any of its offices for the account of such Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to such Borrower or its Restricted Subsidiaries), and (iib) other property or amounts at any time held or owing by Lender (or by any Subsidiary of Lender, solely with respect to property or amounts at any time held or owing to such entity pursuant to the Supply Agreement) to or for the credit or for the account of such Borrower or any of its Subsidiaries, against and on account of any of the Obligations. Notwithstanding the foregoing, Lender shall not set off any balances, property or other amounts held or owing by Lender or any Subsidiary of Lender to or for the credit or for the account of any Borrower or any of its Restricted Subsidiaries, against and on account their respective Subsidiaries under or with respect to the Supply Agreement following the occurrence of any an Acceleration Event unless an Event of the Obligations; except Default under Section 10.1(a)(i) gave rise to such Acceleration Event (a “Payment Acceleration Event”) (it being understood that no Event of Default arising after an Acceleration Event that is not a Payment Acceleration Event (including any Event of Default arising under Section 10.1(a)(i)) shall permit Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and such balances, property or other amounts against the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the ObligationsSupply Agreement). Each Borrower agrees, to the fullest extent permitted by Lawlaw, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event 10.6 and Lender hereby agrees that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately its setoff rights are hereby waived to the Administrative Agent for further application extent set forth in accordance with the provisions of this Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff10.6.

Setoff Rights. During the continuance of any Event of Default, each Lender is hereby authorized by Borrower at any time or from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agrees, to the fullest extent permitted by Law, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided in this Section 8.5. In the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the LC Issuers, Agent and the LendersLendersSecured Parties, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.

Setoff Rights. During (a) In the continuance of any Event of Default, each Lender event that an amount is hereby authorized by Borrower at any time or from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off due and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender TXMD to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender Purchaser in accordance with their respective Pro Rata Share of Section 5.3, Purchaser shall have the Obligations. Borrower agrees, to the fullest extent permitted by Law, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to setoff of any such amounts due and payable by TXMD against the Obligations as provided in this Section 8.5. Contingent Payments. (b) In the event that any Defaulting Lender shall exercise any Purchaser Indemnified Party submits to TXMD (each of the following, an “Indemnification Claim”): (a) a claim to for indemnification pursuant to Section 12.5(a) or (b) a Claim Notice pursuant to Section 12.5(b), and the amount of TXMD’s indemnification obligation to such right of setoff, Purchaser Indemnified Party is agreed upon between TXMD and such Purchaser Indemnified Party (x) all amounts so set off shall or deemed to be paid over immediately to the Administrative Agent for further application agreed upon in accordance with Section 12.5) or otherwise judicially determined in accordance with Section 13.10, Purchaser shall have the provisions right to setoff (“Setoff Right”) of Section 2.17 andany such amounts due and payable by TXMD against the Contingent Payments (and in the case of a Purchaser Indemnified Party other than the Purchaser, pending Purchaser shall pay the amount of such paymentSetoff Right to such Purchaser Indemnified Party as and when such amounts are otherwise due and payable under the Contingent Payments). In the event TXMD disputes an Indemnification Claim and such Indemnification Claim is finally determined to be in favor of such Purchaser Indemnified Party, the Setoff Right shall be segregated extend to, and deemed to include, (i) all legal fees and expenses incurred by such Defaulting Lender Purchaser Indemnified Party to pursue the Indemnification Claim plus (ii) interest calculated at the Interest Rate on all amounts due with respect to such Indemnification Claim accruing from its other funds and deemed held in trust for the benefit date of such Purchaser Indemnified Party’s delivery of the Administrative Agent, Indemnification Claim to TXMD through the LC Issuers, and date of the Lenders, and (y) applicable setoff against the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffContingent Payments or any Underpayment Amount.

Setoff Rights. During (a) In addition to any rights and remedies of the continuance of any Lender provided by law, if an Event of DefaultDefault shall have occurred and be continuing, each Lender Lender, the Administrative Agent, the Issuing Bank, and each of their respective Affiliates is hereby authorized by Borrower at any time or and from time to time, with reasonably prompt subsequent notice to Borrower (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (i) balances held by such Lender or any of such Lender’s Affiliates at any of its offices for the account of Borrower or any of its Restricted Subsidiaries (regardless of whether such balances are then due to Borrower or its Restricted Subsidiaries), and (ii) other property at any time held or owing by such Lender to or for the credit or for the account of Borrower or any of its Restricted Subsidiaries, against and on account of any of the Obligations; except that no Lender shall exercise any such right without the prior written consent of Administrative Agent. Any Lender exercising a right to set off shall purchase for cash (and the other Lenders shall sell) interests in each of such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause all Lenders to share the amount so set off with each other Lender in accordance with their respective Pro Rata Share of the Obligations. Borrower agrees, to the fullest extent permitted by Lawapplicable law, that any Lender or any of such Lender’s Affiliates may exercise its right to set off with respect to the Obligations as provided and apply any and all deposits (general or special, time or demand, provisional or final, in this Section 8.5. In the event that whatever currency , and wherever held ) at any Defaulting Lender shall exercise time held and other obligations (in whatever currency) at any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated time owing by such Defaulting Lender from its Lender, the other funds and deemed held in trust for the benefit of Lenders, the Administrative Agent, the LC IssuersIssuing Bank or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the obligations of the Borrowers or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, and the other Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent or the Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a statement describing branch or office of such Lender or the Issuing Bank different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the Issuing Bank and their respective Affiliates under this Section are in reasonable detail addition to other rights and remedies (including other rights of setoff) that such Lender, the Obligations owing Issuing Bank , the Administrative Agent or their respective Affiliates may have. Each Lender and the Issuing Bank agrees to notify the Borrowers and the Administrative Agent promptly after any such Defaulting setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. For purposes of effectuating the setoff rights of the Lender, the Administrative Agent, the Issuing Bank and each of their respective Affiliates pursuant to this paragraph (and for no other purpose), the Borrowers and each Loan Party expressly agree to treat each Lender, the Administrative Agent, the Issuing Bank and each of their respective Affiliates (including but not limited to each of their respective branches and offices) as a single entity; it being the express intent of the Borrowers and each Loan Party to maximize the available deposits that may be used to set off against any and all of the obligations of the Borrowers or such Loan Party under this Agreement or any other Loan Document. (b) If any Lender as to which it exercised such shall, by exercising any right of setoff.setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Credit Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Revolving Credit Loans and accrued interest thereon or other such obligations greater than