Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Samples: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Setoff. Regardless Subject to the terms of this Section 21, Assignor hereby grants to Agent and each of the adequacy Lenders, a lien, security interest and right of any setoff as security for all liabilities and obligations to Agent and the ObligationsLenders, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Agent or any Lender or any entity under the Loan Parties control of Agent or Lender or in transit to such Lenderany of them. Each At any time, from and after the occurrence of and during the Lenders agrees with each other continuance of an Event of Default, Agent or any Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of may set off the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all same or any part thereof and apply the same to any liability or obligation of Assignor even though unmatured and regardless of the adequacy of any other collateral securing the Loan. Within five (5) Business Days of making any such set-off, Agent agrees to notify Assignor thereof, provided that the failure by Agent to give such notice shall not affect the validity of such excess payment is thereafter recovered from such Lenderset-off. ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recoveryPRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffCREDITS OR OTHER PROPERTY OF THE ASSIGNOR, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement andARE HEREBY KNOWINGLY, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffVOLUNTARILY AND IRREVOCABLY WAIVED.
Appears in 2 contracts
Samples: Loan Agreement (Cedar Realty Trust, Inc.), Loan Agreement (Cedar Shopping Centers Inc)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of the Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, after an Event of Default under the Loan Documents has occurred, each Lender shall exercise have the right from time to time, without notice to the Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of each Lender to the Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by the Guarantor with such Lender. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to the Guarantor is absolute or contingent, matured or unmatured (it being agreed that each Lender may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker's lien available to any Lender under this Section 5.8, (a) all amounts so set off shall be paid over immediately to at law or otherwise. The Guarantor hereby agrees that any affiliate of any Lender, and any holder of a participation in any Guaranteed Obligations of the Agent for further application in accordance with the provisions of Guarantor under this Agreement and, pending such paymentAgreement, shall have the same rights of setoff as each Lender as provided in this Section 5.8 (regardless of whether such affiliate or participant otherwise would be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit a creditor of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffGuarantor).
Appears in 2 contracts
Samples: Credit Agreement (Curtiss Wright Corp), Short Term Credit Agreement (Curtiss Wright Corp)
Setoff. Regardless of the adequacy of any security for the Obligationscollateral, during the continuance of if any Event of DefaultDefault shall have occurred and be continuing, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender the Administrative Agent or any Affiliate thereof other Creditor Party to either Borrower or any of the Loan Parties Guarantors and any securities or other property of either Borrower or any of the Loan Parties Guarantors in the possession of the Administrative Agent or such Lender other Creditor Party or any Affiliate of their respective Affiliates may, at any time, solely with the consent of the Administrative Agent, without demand or notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of AgentBorrowers and the Guarantors), in whole or in part, be applied to or set off by the Administrative Agent or such other Creditor Party against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become dueObligations, now existing or hereafter arising, of the Loan Parties to such Lender. Each Borrowers or any of the Lenders agrees Guarantors to the Administrative Agent or such other Creditor Party regardless of the adequacy of any other collateral securing the Loans. The Administrative Agent and each of the other Creditor Parties agree with and among each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrowers or any of the Guarantors to the Administrative Agent or such Lender other Creditor Party, such amount shall be applied ratably first to Obligations owed to the Creditor Party exercising such right of set off and pro rata to any other similarly situated Creditor Parties, and then to the Obligations owed all other Creditor Parties, including, without limitation, Reimbursement Obligations owed to the Issuing Bank or all Lenders, and (ii) if the Administrative Agent or such other Creditor Party shall receive from a Loan Partyeither Borrower or any Guarantor or any other source, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement in the name of, or constituting Reimbursement Obligations owed to, the Administrative Agent or such other Creditor Party by proceedings against a Borrower or a Guarantor at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note Obligations owed to the Administrative Agent or Notes held by such Lender (but excluding the Swing Loan Note) other Creditor Party any amount in excess of its ratable portion of the payments received by all of the Lenders Creditor Parties with respect to the Notes held by debt evidenced hereby corresponding to all of the LendersCreditor Parties, such Lender Creditor Party will make such disposition and arrangements with the other Lenders Creditor Parties with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Creditor Party receiving in respect of the Notes held by it debt evidenced hereby in its name or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderCreditor Party, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement andPRIOR TO THE ADMINISTRATIVE AGENT OR ANY OTHER CREDITOR PARTY EXERCISING ANY RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, pending such paymentCREDITS OR OTHER PROPERTY OF EITHER BORROWER OR ANY GUARANTOR ARE HEREBY KNOWINGLY, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffVOLUNTARILY AND IRREVOCABLY WAIVED.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Centerline Holding Co), Revolving Credit and Term Loan Agreement (Centerline Holding Co)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of the Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, after an Event of Default under the Loan Documents has occurred, each Lender shall exercise have the right from time to time, without notice to the Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of each Lender to the Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by the Guarantor with the Lender. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to the Guarantor is absolute or contingent, matured or unmatured (it being agreed that each Lender may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker’s lien available to any Lender under this Section 5.8, (a) all amounts so set off shall be paid over immediately to at law or otherwise. The Guarantor hereby agrees that any affiliate of any Lender, and any holder of a participation in any Guaranteed Obligations of the Agent for further application in accordance with the provisions of Guarantor under this Agreement and, pending such paymentAgreement, shall have the same rights of setoff as each Lender as provided in this Section 5.8 (regardless of whether such affiliate or participant otherwise would be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit a creditor of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffGuarantor).
Appears in 2 contracts
Samples: Guaranty and Suretyship Agreement (Black Box Corp), Guaranty and Suretyship Agreement (Black Box Corp)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of any Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, after an Event of Default under the Loan Documents has occurred, each Lender shall exercise have the right from time to time, without notice to such Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of each Lender to the Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by such Guarantor with such Lender. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to such Guarantor is absolute or contingent, matured or unmatured (it being agreed that each Lender may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker’s lien available to any Lender under this Section 5.8, (a) all amounts so set off shall be paid over immediately to the Agent for further application at law or otherwise. Each Guarantor hereby agrees that any affiliate of any Lender, and any holder of a participation in accordance with the provisions any Guaranteed Obligations of any Guarantor under this Agreement and, pending such paymentAgreement, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for have the benefit same rights of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting setoff as each Lender as to which it exercised provided in this Section 5.8 (regardless of whether such right affiliate or participant otherwise would be deemed a creditor of setoffsuch Guarantor).
Appears in 2 contracts
Samples: Guaranty and Suretyship Agreement (Black Box Corp), Guaranty and Suretyship Agreement (Black Box Corp)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of any Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, after an Event of Default under the Loan Documents has occurred, each Lender shall exercise have the right from time to time, without notice to such Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of each Lender to the Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by such Guarantor with such Lender. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to such Guarantor is absolute or contingent, matured or unmatured (it being agreed that each Lender may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, regardless of whether the offset obligations are denominated in the same or different currencies and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker’s lien available to any Lender under this Section 5.8, (a) all amounts so set off shall be paid over immediately to the Agent for further application at law or otherwise. Each Guarantor hereby agrees that any affiliate of any Lender, and any holder of a participation in accordance with the provisions any Guaranteed Obligations of any Guarantor under this Agreement and, pending such paymentAgreement, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for have the benefit same rights of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting setoff as each Lender as to which it exercised provided in this Section 5.8 (regardless of whether such right affiliate or participant otherwise would be deemed a creditor of setoffsuch Guarantor).
Appears in 2 contracts
Samples: Credit Agreement (Black Box Corp), Guaranty and Suretyship Agreement (Black Box Corp)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Secured Party is authorized at any time and from time to time without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final), regardless of currency, maturity, or the branch where such other than deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof in fiduciary accounts as to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any which a Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from is acting as fiduciary for another Person who is not a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwiseat any time held by, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) other Indebtedness at any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderstime owing by, such Lender will make such disposition to or for the credit or the account of the respective Loan Parties against any and arrangements with the other Lenders with respect all Obligations owing to such excessSecured Party hereunder or under any other Loan Document, either by way now or hereafter existing, irrespective of distribution, pro tanto assignment of claims, subrogation whether or otherwise as not such Agent or such Lender shall result have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in each Lender receiving in respect a currency different from that of the Notes held by it its proportionate payment as contemplated by this Agreementapplicable deposit or Indebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.20 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (by) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Secured Party agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Secured Party; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Secured Party under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Secured Party may have.
Appears in 2 contracts
Samples: Credit Agreement (Visteon Corp), Credit Agreement (Visteon Corp)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, subject to the exclusive right of the Administrative Agent and the Collateral Agent to exercise remedies under Section 9.11, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to Parent Borrower or any other Loan Party, any such notice being waived by Parent Borrower (on its own behalf and on behalf of each Loan Party and the Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currencybut excluding any payroll, maturitytrust, or Tax withholding accounts) at any time held by, and other Indebtedness (in any currency) at any time owing by, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the branch where such deposits are held) case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary of a U.S. Subsidiary or a U.S. Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify Parent Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 2 contracts
Samples: Credit Agreement (Primo Water Corp /CN/), Credit Agreement (Primo Water Corp /CN/)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Specified Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of and other Indebtedness (in any currency) at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary that is a CFC or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 2 contracts
Samples: Credit Agreement (KORE Group Holdings, Inc.), Credit Agreement (King Pubco, Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, subject to the exclusive right of the Administrative Agent and the Collateral Agent to exercise remedies under Section 9.11, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Parent Borrower or any other Loan Party, any such notice being waived by each Borrower (on its own behalf and on behalf of each Loan Party and the Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currencybut excluding any payroll, maturitytrust, or tax withholding accounts) at any time held by, and other Indebtedness (in any currency) at any time owing by, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the branch where such deposits are held) case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Parent Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 2 contracts
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Abl Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such Subsidiary is not a direct or indirect subsidiary of Holdings. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender may have. Notwithstanding anything to the contrary contained herein or in any other Loan Document, each Lender expressly waives its right of setoffsetoff pursuant to this Section 10.09 or any other provision of any Loan Document with respect to deposit accounts in which have been deposited payments received under Medicare, Medicaid, TRICARE and other health care programs of the United States or any state (including the District of Columbia) thereof and any agency or other Governmental Authority thereof.
Appears in 2 contracts
Samples: Credit Agreement (IASIS Healthcare LLC), Amended and Restated Credit Agreement (IASIS Healthcare LLC)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all Obligations owing to such Lender hereunder or under any other liabilities, direct, or indirect, absolute or contingent, due or to become dueLoan Document, now existing or hereafter arisingexisting, irrespective of the Loan Parties to whether or not such Lender. Each of the Lenders agrees with each other Lender that if Agent or such Lender shall receive have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from a Loan Party, whether by voluntary payment, exercise that of the right applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary constitute security, or otherwiseshall the proceeds of such assets be available for, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion Obligations of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Borrower or any part of such excess payment is thereafter recovered from such LenderDomestic Subsidiary, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event it being understood that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions Equity Interests of this Agreement and, pending any Foreign Subsidiary does not constitute such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, an asset and (b) the Defaulting Lender provisions hereof shall provide promptly not limit, reduce or otherwise diminish in any respect the Borrower’s obligations to the Agent a statement describing in reasonable detail the Obligations owing make any mandatory prepayment pursuant to such Defaulting Lender as to which it exercised such right of setoffSection 2.05(b)(ii).
Appears in 2 contracts
Samples: Credit Agreement (Michael Foods Inc/New), Credit Agreement (Michael Foods Inc/New)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of a Subsidiary Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, each Lender Party shall exercise have the right from time to time, without notice to such Subsidiary Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of such Lender Party to such Subsidiary Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by such Subsidiary Guarantor with such Lender Party. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to such Subsidiary Guarantor is absolute or contingent, matured or unmatured (it being agreed that such Lender Party may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender Party. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker's lien available to a Lender Party under this Section 5.08, (a) all amounts so set off shall be paid over immediately to the Agent for further application at law or otherwise. Each Subsidiary Guarantor hereby agrees that any affiliate of a Lender Party, and any holder of a participation in accordance with the provisions any obligation of such Subsidiary Guarantor under this Agreement and, pending such paymentAgreement, shall have the same rights of setoff as the Lender Parties as provided in this Section 5.08 (regardless of whether such affiliate or participant otherwise would be segregated by deemed a creditor of such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSubsidiary Guarantor).
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to any Borrower or any other Loan Party, any such notice being waived by the Borrowers (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) (other than amounts held in (i) payroll or Tax withholding accounts, regardless of currency(ii) employee benefit accounts, maturity(iii) trust ac-counts, or (iv) escrow accounts or similar security deposit accounts) at any time held by, and other Indebtedness at any time owing to, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the branch where such deposits are held) case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Restricted Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect subsidiary of Holdings. Each Lender and L/C Issuer agrees promptly to notify the Parent Borrower and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.10 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and any deposits (general or specific, Affiliate of any Lender is hereby authorized by the Borrower at any time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilities, direct, Indebtedness at any time held or indirect, absolute owing by such Lender or contingent, due any of its Affiliates to or to become due, now existing for the credit or hereafter arising, the account of the Loan Parties Borrower against and on account of the Obligations of the Borrower to such Lender. Each Lender or any of the Lenders agrees its Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in connection with each other Lender that if this Agreement, irrespective of whether or not (i) such Lender shall receive from a Loan Partyhave made any demand hereunder or (ii) the Payment and Disbursement Agent, whether by voluntary payment, exercise at the request or with the consent of the right Requisite Lenders, shall have declared the principal of setoffand interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XI and even though such Obligations may be contingent or unmatured. Each Lender agrees that it shall not, or otherwisewithout the express consent of the Requisite Lenders, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lendersthat it shall, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recoveryit is lawfully entitled to do so, but without interest. In upon the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit request of the Agent and the Requisite Lenders, and (b) exercise its setoff rights hereunder against any accounts of the Defaulting Borrower now or hereafter maintained with such Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffor any Affiliate.
Appears in 1 contract
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are heldi) or other sums credited by or due from any Lender or any Affiliate thereof The right to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off setoff against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements First Installment Payment shall be rescinded and the amount restored to the extent of such recoveryavailable, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of subsections (ii) and (iii) below, to compensate each Buyer Indemnitee for all Damages subject to indemnification pursuant to this Agreement andArticle VII, pending incurred or sustained by such paymentBuyer Indemnitee; provided, however, that any such claim for setoff against the First Installment Payment shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly subject to the Agent limitations set forth in Sections 7.04 and 8.02.
(ii) In the event of a statement describing claim against the First Installment Payment, the Buyer shall give notice (a “Setoff Notice”) to the Seller specifying in reasonable detail the Obligations owing nature and dollar amount (or a good faith estimate of the dollar amount) of any Damages it has or may have sustained under this Article VII. If the Seller gives notice to the Buyer disputing any Damages (a “Counter Notice”) within fifteen (15) Business Days following receipt by the Seller of the Setoff Notice, such dispute will be resolved as provided in subsection (iii) below. If no Counter Notice is received by the Buyer within such fifteen-day (15-day) period, then the dollar amount of Damages claimed by the Buyer as set forth in its Setoff Notice shall be conclusively deemed a liability of the Seller for purposes of this Agreement and Buyer shall deduct the amount claimed in the Setoff Notice from the First Installment Payment. The Buyer may make more than one claim of Damages with respect to any underlying state of facts. If a Counter Notice is given with respect to a claim for setoff against the First Installment Payment, the parties shall resolve the conflict in accordance with the procedures set forth in Section 9.09.
(iii) On the applicable date for payment of the First Installment Payment, the Buyer shall pay and distribute the First Installment Payment (less any amounts established for setoff pursuant to the provisions of this subsection 7.03(b) or in accordance with the procedures set forth in Section 9.09), unless any claims against the First Installment Payment are then pending, in which case an amount equal to the aggregate dollar amount (or a good faith estimate of the dollar amount) of such claims (as shown in the Setoff Notice with respect to such Defaulting Lender claims) shall be retained by the Buyer until the conflict is resolved in accordance with the procedures set forth in Section 12.09 and the balance of the First Installment Payment shall be paid to the Seller.
(iv) In the event the Buyer retains any portion of the First Installment Payment that is later established (pursuant to the provisions of this subsection 7.03(b) or in accordance with the procedures set forth in Section 9.09) to be payable to the Seller (any such amount, the “Installment Balance”), the Buyer shall promptly pay to the Seller in cash an amount equal to the Installment Balance plus interest on the Installment Balance at a simple rate of five percent (5%) per annum commencing on the date set for payment of the First Installment Payment and the date the Buyer delivers the Installment Balance to the Seller.
(v) Except as to which it exercised such right set forth in Sections 7.04 and 9.09, the Selling Parties and the Buyer agree that from and after the Closing claims for setoff against the First Installment Payment are the exclusive remedy of setoffthe Buyer for any breach of this Agreement by the Selling Parties.
Appears in 1 contract
Samples: Asset Purchase Agreement (Green Plains Renewable Energy, Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed), each Lender is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by each of the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all Obligations owing to such Lender hereunder or under any other liabilities, direct, or indirect, absolute or contingent, due or to become dueLoan Document, now existing or hereafter arisingexisting, irrespective of the Loan Parties to whether or not such Lender. Each of the Lenders agrees with each other Lender that if Agent or such Lender shall receive have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party, whether by voluntary payment, exercise of the right of setoffParty constitute security, or otherwiseshall the proceeds of such assets be available for, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion Obligations of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Borrower or any part of such excess payment is thereafter recovered from such LenderDomestic Subsidiary, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event it being understood that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions Equity Interests of this Agreement and, pending any Foreign Subsidiary that is not a Loan Party do not constitute such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, an asset and (b) the Defaulting Lender provisions hereof shall provide promptly not limit, reduce or otherwise diminish in any respect the Borrower’s obligations to the Agent a statement describing in reasonable detail the Obligations owing make any mandatory prepayment pursuant to such Defaulting Lender as to which it exercised such right of setoffSection 2.05(b).
Appears in 1 contract
Samples: Credit Agreement (Sensata Technologies Holding PLC)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by MVWC and the Borrowers (each on its own behalf and on behalf of each Loan Party and the Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currencybut excluding any payroll, maturitytrust, or tax withholding accounts) at any time held by, and other Indebtedness (in any currency) at any time owing by, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the branch where such deposits are held) case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrower Representative and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Samples: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Setoff. Regardless In addition to any rights now or hereafter granted under Applicable Law and not by way of the adequacy limitation of any security for the Obligationssuch rights, during the continuance of any Event of Default, each Lender, any participant with such Lender in the Loans and each Affiliate of each Lender are hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or specificspecial, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited owing by or due from any Lender or any Affiliate thereof of any Lender or any participant to or for the Loan Parties credit or the account of the Borrower against and on account of the Secured Obligations irrespective or whether or not
(a) Agent or such Lender shall have made any securities demand under this Agreement or other property any of the Loan Parties in Documents, or
(b) the possession Agent or such Lender shall have declared any or all of the Secured Obligations to be due and payable as permitted by Section 13.2 and although such Secured Obligations shall be contingent or unmatured. Notwithstanding the foregoing, (i) each Lender (other than NationsBank) agrees that it shall not, without the express consent of the Required Lenders, exercise its setoff rights hereunder against any accounts of Borrower now or hereafter maintained with such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Noteii) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders agree that the Agent or any Lender shall (to the extent that it is lawfully entitled to do so) upon the request of the Required Lenders, exercise its respective setoff rights hereunder against any accounts of Borrower now or hereafter maintained with the Agent, such Lender or any Affiliate of any of them. If any party (or its Affiliate) exercises the right of setoff provided for hereunder, such party shall be obligated to share any such setoff in the manner and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffextent required by Section 16.24.
Appears in 1 contract
Samples: Loan and Security Agreement (Standard Commercial Corp)
Setoff. Regardless of From and after the adequacy of any security for the Obligations, during the continuance occurrence of any Event of DefaultDefault and during the continuance thereof, in addition to (and not in limitation of) any rights now or hereafter granted under Applicable Law to Administrative Agent, any Lender, or, subject to the provisions of Section 13.1(d), any Participant, each subsequent holder of any of the Obligations, and each of their respective Affiliates (collectively, for purposes of this Section 15.6, the “Setoff Parties” and, individually, a “Setoff Party”), is hereby authorized by each Credit Party to setoff and to appropriate and apply any and all deposits (general or specificspecial, time or demand, provisional including Debt evidenced by certificates of deposit, in each case, whether matured or finalun-matured, regardless but excluding (x) any amounts held by any Setoff Party in any escrow payroll, trust, tax or fiduciary account and (y) without the prior consent of currencyAdministrative Agent, maturityany Collection Account, and any other Debt at any time held or owing by any Setoff Party to or for the credit or the branch where account of any Credit Party, against the Obligations as provided in this Agreement, irrespective of whether (a) any demand for such deposits Obligations has been made; or (b) the Obligations have been accelerated as contemplated in Section 11.2; or (c) such Obligations are held) contingent or other un-matured. Any sums credited obtained by or due from any Lender or any Affiliate thereof Setoff Party shall be subject to the Loan Parties and requirements for application of payments to the Obligations as set forth in this Agreement. The rights granted to each Setoff Party under this Section 15.6 may be exercised at any securities time or other property of the Loan Parties in the possession of such Lender or any Affiliate mayfrom time to time, without notice to any Loan Credit Party or any other Person, except that each Setoff Party shall notify Administrative Agent promptly (but in any event within one (1) Business Day) after exercising such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwisespecifying the amount thereof. Each Credit Party hereby waives any right that it may have as a matter of Applicable Law to any such notice. In addition to the foregoing, and shall retain and apply notwithstanding any provision hereof to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount contrary, in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 4.2 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (by) 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.
Appears in 1 contract
Samples: Credit Agreement (BRC Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to any Borrower or any other Loan Party, any such notice being waived by the Borrowers (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing to, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Restricted Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmetered or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect subsidiary of the Borrowers. Each Lender and L/C Issuer agrees promptly to notify the Parent Borrower and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.10 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have. No amounts set off from any Guarantor shall be applied to any Excluded Swap Obligations of such Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Setoff. Regardless of the adequacy of any security for the ObligationsCollateral, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held, but excluding any payroll, employee benefit, fiduciary, trust and tax withholding accounts used exclusively for such purposes) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties any Credit Party and any securities or other property of the Loan Parties such parties in the possession of such Lender or any Affiliate may, without notice to Borrower or any Loan other Credit Party (any such notice being expressly waived by Loan PartiesBorrower) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties Borrower or any other Credit Party to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Borrower or any Credit Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note Loan or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes Loans held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes Loans held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, : (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owning by such Lender or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect subsidiary of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have.
Appears in 1 contract
Samples: Term Loan Credit Agreement (SMART Technologies Inc.)
Setoff. Regardless of From and after the adequacy of any security for the Obligations, during the continuance occurrence of any Event of DefaultDefault and during the continuance thereof, in addition to (and not in limitation of) any rights now or hereafter granted under Applicable Law to Administrative Agent, LC Issuer, any Lender, or, subject to the provisions of Section 13.1(d), any Participant, each subsequent holder of any of the Obligations, and each of their respective Affiliates (collectively, for purposes of this Section 15.6, the “Setoff Parties” and, individually, a “Setoff Party”), is hereby authorized, subject to the prior consent of Administrative Agent, by each Credit Party to setoff and to appropriate and apply any and all deposits (general or specificspecial, time or demand, provisional including Debt evidenced by certificates of deposit, in each case, whether matured or finalun-matured, regardless but excluding (x) any amounts held by any Setoff Party in any escrow payroll, trust, tax or fiduciary account and (y) without the prior consent of currencyAdministrative Agent, maturityany Collection Account, and any other Debt at any time held or owing by any Setoff Party to or for the credit or the branch where account of any Credit Party, against the Obligations as provided in this Agreement, irrespective of whether (a) any demand for such deposits Obligations has been made; or (b) the Obligations have been accelerated as contemplated in Section 11.2; or (c) such Obligations are held) contingent or other un-matured. Any sums credited obtained by or due from any Lender or any Affiliate thereof Setoff Party shall be subject to the Loan Parties and requirements for application of payments to the Obligations as set forth in this Agreement. The rights granted to each Setoff Party under this Section 15.6 may be exercised at any securities time or other property of the Loan Parties in the possession of such Lender or any Affiliate mayfrom time to time, without notice to any Loan Credit Party (or any such notice being expressly waived by Loan Parties) but with other Person, except that each Setoff Party shall obtain the prior written approval consent of Agent, be applied to or set off against the payment of Obligations Administrative Agent and shall notify Administrative Agent promptly (but in any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to event within one (1) Business Day) after exercising such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwisespecifying the amount thereof. Each Credit Party hereby waives any right that it may have as a matter of Applicable Law to any such notice. In addition to the foregoing, and shall retain and apply notwithstanding any provision hereof to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount contrary, in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 4.2 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 Agent Administrative Agent, LC Issuer, Swing Line Lender and the other Lenders, and (by) 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.
Appears in 1 contract
Samples: Credit Agreement (BRC Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Parent Borrower or any other Loan Party, any such notice being waived by the Parent Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or In-debtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owning by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect Subsidiary of the Parent Borrower. Each Lender and L/C Issuer agrees promptly to notify the Parent Borrower and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan ------ Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender, each Issuing Bank and any deposits (general or specific, time or demand, provisional or final, regardless Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or Issuing Bank is hereby authorized by the Borrowers at any Affiliate thereof time or from time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of a Borrower against and on account of the Loan Parties Obligations of such Borrower to such Lender, Issuing Bank or any of their Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in connection herewith, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Administrative Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XI and even though such Obligations may ---------- be contingent or unmatured. Each Lender and Issuing Bank agrees that it shall not, without the express consent of the Lenders agrees with each other Lender Requisite Lenders, and that if such Lender shall receive from a Loan Partyit shall, whether by voluntary paymentto the extent it is lawfully entitled to do so, upon the request of the Requisite Lenders, exercise its setoff rights hereunder against any accounts of the right of setoff, Borrowers or otherwise, and shall retain and apply to the payment of the Note their Subsidiaries now or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders hereafter maintained with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right either of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffthem.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy Lenders provided by Law, but subject to Section 5.5 of any security for the ObligationsSecurity Agreement, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and their Subsidiaries against any securities and all Obligations owing to such Lender and its Affiliates hereunder or under any other property Loan Document, now or hereafter existing, irrespective of whether or not the Loan Parties in the possession of Administrative Agent or such Lender or Affiliate shall have made demand under this Agreement or any Affiliate mayother Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided, without that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 11.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the constitute collateral security for payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion Obligations of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Borrower or any part of such excess payment is thereafter recovered from such LenderDomestic Subsidiary, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event it being understood that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions Equity Interests of this Agreement and, pending any Foreign Subsidiary that is not a Loan Party do not constitute such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, an asset and (b) the Defaulting Lender provisions hereof shall provide promptly not limit, reduce or otherwise diminish in any respect the Borrower’s obligations to the Agent a statement describing in reasonable detail the Obligations owing make any mandatory prepayment pursuant to such Defaulting Lender as to which it exercised such right of setoffSection 2.04(b).
Appears in 1 contract
Samples: Term Loan Credit and Guarantee Agreement (RDA Holding Co.)
Setoff. Regardless Subject to the terms of the adequacy Intercreditor Agreements, in addition to any rights and remedies of any security for the ObligationsLenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates or the branch where such deposits are held) L/C Issuer and its Affiliates, as the case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or the L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender and the L/C Issuer agrees promptly to notify the Borrower and the Administrative Agents after any such setoff and application made by such Lender or the L/C Issuer, as the case may be; provided that the failure to which it exercised give such right notice shall not affect the validity of such setoff and application; provided, further, that any recovery by any Lender, the L/C Issuer or any Affiliate pursuant to its setoff rights under this section 10.09 is subject to the provisions of Section 8.04(d). The rights of each Administrative Agent, each Lender and the L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that such Administrative Agent, such Lender and the L/C Issuer may have.
Appears in 1 contract
Samples: Credit Agreement (Travelport LTD)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of and other Indebtedness (in any currency) at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Company and the applicable Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff.) that such Administrative Agent, such Lender and such L/C Issuer may have. 232 #95598837v24
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted to ------ the Administrative Agent, the Issuing Banks or the Lenders and any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any security for such Lien or rights, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and Issuing Bank is hereby authorized by the Borrower at any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to the Borrower, or to any Loan Party other Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including indebtedness evidenced by certificates of deposit, whether matured or unmatured but not including trust accounts) and any other liabilities, direct, Indebtedness at any time held or indirect, absolute owing by that Lender or contingent, due Issuing Bank to or to become due, now existing for the credit or hereafter arising, the account of the Loan Parties to such Lender. Each Borrower against and on account of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise Obligations of the right Borrower to that Lender or Issuing Bank including, but not limited to, all Loans and Letter of setoff, Credit Obligations and all claims of any nature or otherwise, and shall retain and apply to the payment description arising out of or connected with this Agreement or any of the Note other Loan Documents, irrespective of whether or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, not (a) all amounts so set off that Lender or Issuing Bank shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and have made any demand hereunder or (b) the Defaulting Administrative Agent shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article X and although said ---------- obligations and liabilities, or any of them, may be contingent or unmatured. Each Lender and Issuing Bank agrees that it shall provide promptly not, without the express consent of the Administrative Agent, and that it shall, to the Agent a statement describing in reasonable detail extent it is lawfully entitled to do so during the Obligations owing to continuation of an Event of Default, upon the request of the Administrative Agent, exercise its set-off rights ================================================================= hereunder against any accounts of the Borrower now or hereafter maintained with such Defaulting Lender as to which it exercised such right of setoffor Issuing Bank.
Appears in 1 contract
Setoff. Regardless of If a Default shall have occurred and be continuing, each Lender and each its Affiliates is hereby authorized at any time and from time to time, to the adequacy of fullest extent permitted by applicable law, to set off and apply any security for the Obligations, during the continuance of any Event of Default, any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held, maturityand other obligations (in whatever currency) at any time owing, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maysuch Affiliate, without notice to or for the credit or the account of the Borrower or any other Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, of the obligations of the Borrower or indirect, absolute or contingent, due or to become due, such Loan Party now existing or hereafter arisingexisting under this Agreement or any other Loan Document to such Lender or its Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Parties Party may be contingent or unmatured or are owed to such Lender. Each a branch, office or Affiliate of the Lenders agrees with each other Lender that if such Lender shall receive different from a Loan Partythe branch, whether by voluntary payment, exercise of the right of setoff, office or otherwise, and shall retain and apply to the payment of the Note Affiliate holding such deposit or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.21 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (by) 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. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have. Each Lender agrees to notify the Borrower 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.
Appears in 1 contract
Samples: Credit Agreement (Aon Corp)
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or specific, special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of Borrowers arising under the Loan Parties Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Outstandings and all claims of any securities nature or other property description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Loan Parties in Required Lenders, shall have declared the possession principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Borrower shall have any claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSECTION 12.5.
Appears in 1 contract
Samples: Loan and Security Agreement (Tropical Sportswear International Corp)
Setoff. Regardless of Borrower hereby grants to Lender a security interest in, and Lender is hereby authorized at any time and from time to time, without prior notice to Borrower (any such notice being expressly waived by the adequacy of any security for the ObligationsBorrower), during the continuance of any Event of Defaultto set off and apply, any and all accounts and deposits (general or specificspecial, time or demand, provisional or final, regardless of currency, maturity) at any time held by Lender, or the branch where such deposits are held) any branch, subsidiary, or affiliate of Lender, and all other sums credited indebtedness at any time owing by or due from any Lender or any Affiliate thereof branch, subsidiary, or affiliate of Lender, to or for the Loan Parties and credit or the account of Borrower (including all accounts held jointly with another, but excluding any securities IRA or other property of the Loan Parties in the possession of such Lender Keogh accounts, or any Affiliate maytrust accounts for which a security ixxxrest xxxxd be prohibited by law), without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the Obligations of Borrower now existing or hereafter arising, of existing under the Loan Parties to such LenderDocuments. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwiseSuch security interest may be enforced, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffsetoff may be exercised, by Lender irrespective of (ai) all amounts so set off whether or not Lender shall be paid over immediately to have made any demand under the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, Loan Documents and (bii) the Defaulting whether such Obligations are contingent, matured, or unmatured. Lender shall provide agrees promptly to notify Borrower after any such setoff and application, provided that the Agent a statement describing failure to give such notice shall not affect the validity of such setoff and application. The rights of Lender under this paragraph are in reasonable detail the Obligations owing addition to such Defaulting Lender as to which it exercised such right other rights and remedies (including, without limitation, other rights of setoff) which Lender may have.
Appears in 1 contract
Samples: Credit Agreement (Across America Real Estate Development Corp)
Setoff. Regardless (a) In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Agent, each Lender and their respective Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Agent, such Lender and/or such Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Agent, such Lender as and/or NEWYORK 8648768 (2K) such Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to which it exercised notify the Borrower and the Administrative Agent after any such right set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that such Agent and such Lender may have.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER OR AGENT SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR, TO THE EXTENT REQUIRED BY Section 10.01 OF THIS AGREEMENT, ALL OF THE LENDERS, OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE COLLATERAL DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR ANY AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrower at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrower or any deposits other Person (any such notice being hereby expressly waived) to set off and to appropriate and to apply any and all deposits, general or specificspecial (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or owing by Agent, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of Borrower against and on account of the Obligations of Borrower arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Outstandings and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but Borrower shall have no claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSECTION 12.5.
Appears in 1 contract
Setoff. Regardless The Company agrees for itself and each other Loan Party that the Administrative Agent, each Lender and the Issuing Lender have all rights of set-off and bankers’ lien provided by applicable law, and in addition thereto, the adequacy of any security Company, for the Obligations, during the continuance of any itself and each other Loan Party. If an Event of DefaultDefault shall have occurred and be continuing, the Administrative Agent, each Lender, the Issuing Lender, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by the Administrative Agent, maturitysuch Lender, or the branch where such deposits are held) or other sums credited by or due from any Issuing Lender or any such Affiliate thereof to or for the credit or the account of the Company or any other Loan Party against any and all of the obligations of the Company or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to the Loan Parties and any securities or other property of the Loan Parties in the possession of Administrative Agent, such Lender or the Issuing Lender, irrespective of whether or not such the Administrative Agent, Lender or the Issuing Lender shall have made any Affiliate may, without notice to demand under this Agreement or any other Loan Document and although such obligations of the Company or such Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, may be applied contingent or unmatured or are owed to a branch or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, office of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the LendersAdministrative Agent, such Lender will make or the Issuing Lender different from the branch or office holding such disposition and arrangements with the other Lenders with respect to deposit or obligated on such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect indebtedness. The rights of the Notes held by it its proportionate payment as contemplated by Administrative Agent, each Lender, the Issuing Lender and their respective Affiliates under this Agreement; provided Section are in addition to other rights and remedies (including other rights of setoff) that if all or any part of such excess payment is thereafter recovered from the Administrative Agent, such Lender, such disposition and arrangements shall be rescinded the Issuing Lender or their respective Affiliates may have. The Administrative Agent, each Lender and the amount restored Issuing Lender agrees to notify the extent Company 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 recovery, but without interestsetoff and application. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.9 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (by) 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. The rights of each Lender, the Issuing Lender 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 Lender or their respective Affiliates may have. The provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Company pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in this Agreement or the Guaranty and Collateral Agreement, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this Section shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
Appears in 1 contract
Samples: Credit Agreement (Cpi Corp)
Setoff. Regardless In addition to any rights and remedies of the adequacy Lenders provided by Law, but subject to Section 5.5 of any security for the ObligationsSecurity Agreement, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and their Subsidiaries against any securities and all Obligations owing to such Lender and its Affiliates hereunder or under any other property Loan Document, now or hereafter existing, irrespective of the Loan Parties in the possession of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any Affiliate mayother Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided, without that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 11.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the constitute collateral security for payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion Obligations of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Borrower or any part of such excess payment is thereafter recovered from such LenderDomestic Subsidiary, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event it being understood that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions Equity Interests of this Agreement and, pending any Foreign Subsidiary that is not a Loan Party do not constitute such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, an asset and (b) the Defaulting Lender provisions hereof shall provide promptly not limit, reduce or otherwise diminish in any respect the Borrower’s obligations to the Agent a statement describing in reasonable detail the Obligations owing make any mandatory prepayment pursuant to such Defaulting Lender as to which it exercised such right of setoffSection 2.04(b).
Appears in 1 contract
Samples: Revolving Credit and Guarantee Agreement (RDA Holding Co.)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault or Prepayment Trigger Event shall have occurred and be continuing, each Syndication Party and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held, maturityand other obligations (in whatever currency) at any time owing, by such Syndication Party or any such Affiliate, to or for the credit or the branch where such deposits are held) or other sums credited by or due from account of any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off Obligor against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of any Obligor now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each Syndication Party or its Affiliates, irrespective of whether or not such Syndication Party or Affiliate shall have made any demand under this Credit Agreement or any other Loan Document and although such obligations of such Obligor may be contingent or unmatured or are owed to a branch, office or Affiliate of such Syndication Party different from the Lenders agrees with each other Lender that if branch, office or Affiliate holding such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, deposit or otherwise, and shall retain and apply to the payment of the Note or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Syndication Party shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 15.29 and, pending such payment, shall be segregated by such Defaulting Lender Syndication Party from its other funds and deemed held in trust for the benefit of the Administrative Agent and the LendersSyndication Party, and (by) the Defaulting Lender Syndication Party shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations Bank Debt owing to such Defaulting Lender Syndication Party as to which it exercised such right of setoff. The rights of each Syndication Party and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Syndication Party or its Affiliates may have. Each Syndication Party agrees to notify the relevant Obligor 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.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for the ObligationsBanks provided by law, during the continuance of any if an Event of DefaultDefault exists, each Bank is authorized at any time and from time to time, without prior notice to the Borrowers, any such notice being waived by the Borrowers to the fullest extent permitted by law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other indebtedness at any time owing to, maturity, such Bank to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property account of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off Borrowers against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as Bank, now or hereafter existing, irrespective of whether or not the Agent or such Bank shall have made demand under this Agreement or any Loan Document and although such Obligations may be contingent or unmatured. Each Bank agrees promptly to which it exercised notify the Borrowers and the Agent after any such right setoff and application made by such Bank; PROVIDED, HOWEVER, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Bank under this Section 10.09 are in addition to the other rights and remedies (including other rights of setoff) which the Bank may have. NOTWITHSTANDING THE FOREGOING, NO BANK SHALL EXERCISE, OR ATTEMPT TO EXERCISE, ANY RIGHT OF SETOFF, BANKER'S LIEN, OR THE LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF THE BORROWERS OR ANY SUBSIDIARY OF THE BORROWERS HELD OR MAINTAINED BY THE BANK WITHOUT THE PRIOR WRITTEN CONSENT OF THE MAJORITY BANKS.
Appears in 1 contract
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan ------ Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender, each Issuing Bank and any deposits (general or specific, time or demand, provisional or final, regardless Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or Issuing Bank is hereby authorized by the Borrowers at any Affiliate thereof time or from time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of a Borrower against and on account of the Loan Parties Obligations of such Borrower to such Lender, Issuing Bank or any of their Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in connection herewith, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Administrative Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XI and even though such Obligations may ---------- be contingent or unmatured. Each Lender and Issuing Bank agrees that it shall not, without the express consent of the Lenders agrees with each other Lender Requisite Lenders, and that if such Lender shall receive from a Loan Partyit shall, whether by voluntary paymentto the extent it is lawfully entitled to do so, upon the request of the Requisite Lenders, exercise its setoff rights hereunder against any -129- accounts of the right of setoff, Borrowers or otherwise, and shall retain and apply to the payment of the Note their Subsidiaries now or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders hereafter maintained with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right either of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffthem.
Appears in 1 contract
Setoff. Regardless In addition to any other rights which any Lender Party may have under applicable law, upon the occurrence of the adequacy of any security for the Obligations, during the continuance of any an Event of DefaultDefault hereunder, each Lender Party shall have a right to apply any Loan Party’s property held by it to reduce the Obligationsand each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held, maturityand other obligations (in whatever currency) at any time owing, by such Lender Party or any such Affiliate, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender account of the Borrower or any Affiliate thereof to the other Loan Parties Party against any and any securities or other property all obligations of the Borrower or such Loan Parties in Party now or hereafter existing under this Agreement or any Other Document to such Lender Party or their respective Affiliates, irrespective of whether or not such Lender Party or Affiliate shall have made any demand under this Agreement or any Other Document and although such obligations of the possession Borrower or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender Party different from the branch, office or any Affiliate may, without notice to any Loan Party (any holding such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to deposit or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to obligated on such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement Section 2.12 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 Agent and the Lenders, and (by) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender Party and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender Party or their respective Affiliates may have. Each Lender Party agrees to notify the Borrower and the 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.
Appears in 1 contract
Samples: Credit and Security Agreement (Manhattan Bridge Capital, Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Lead Borrower or any other Loan Party, any such notice being waived by the Lead Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of and other Indebtedness (in any currency) at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Lead Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Samples: Credit Agreement (Yum Brands Inc)
Setoff. Regardless If a Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the adequacy of fullest extent permitted by Applicable Law, to set off and apply any security for the Obligations, during the continuance of any Event of Default, any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held, maturityand other obligations (in whatever currency) at any time owing, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maysuch Affiliate, without notice to or for the credit or the account of the Borrower or any other Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, of the obligations of the Borrower or indirect, absolute or contingent, due or to become due, such Loan Party now existing or hereafter arisingexisting under this Agreement or any other Loan Document to such Lender or their respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Parties Party may be contingent or unmatured or are owed to such Lender. Each a Lending Installation or Affiliate of the Lenders agrees with each other Lender that if such Lender shall receive different from a Loan Party, whether by voluntary payment, exercise of the right of setoff, Lending Installation or otherwise, and shall retain and apply to the payment of the Note Affiliate holding such deposit or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.22 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (by) 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. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower 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.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by Holdings and the Borrowers (each on its own behalf and on behalf of each Loan Party and the Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currencybut excluding any payroll, maturitytrust, or tax withholding accounts) at any time held by, and other Indebtedness (in any currency) at any time owing by, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the branch where such deposits are held) case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrower Representative and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Samples: Credit Agreement (W R Grace & Co)
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or specific, special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of any Obligor against and on account of the Obligations of Obligors arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Obligations and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of any Obligor now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Obligor shall have any claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSECTION 13.5.
Appears in 1 contract
Setoff. Regardless In addition to, and without limitation of, any rights of the adequacy of any security for the ObligationsAdministrative Lender and Lenders under applicable law, during the continuance of if Company becomes insolvent, however evidenced, or any Event of DefaultDefault occurs and is continuing, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due indebtedness from any Administrative Lender or any Affiliate thereof Lenders to the Loan Parties and any securities or other property Company (including, without limitation, funds of the Loan Parties in the possession of such Company on deposit with Administrative Lender or any Affiliate may, without notice Lenders which have not yet been collected or which are not yet available in accordance with Administrative Lender's or Lenders' availability schedules from time to any Loan Party (any such notice being expressly waived by Loan Partiestime in effect) but with the prior written approval of Agent, may be offset and applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to toward the payment of the Note Obligations, for the ratable benefit of Lenders whether or Notes held by such Lender (but excluding not the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the LendersObligations, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part hereof, shall then be due. =============================================================================== THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. =============================================================================== IN WITNESS WHEREOF, the undersigned have executed this Security Agreement as of such excess payment the date first above written. By: Its: 0000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxx, Xxxxxx 00000-0000 General Communication, Inc. - Form 8-K Page 145 EXHIBIT D COMPLIANCE CERTIFICATE To: The Banks parties to the Credit Agreement Described Below This Compliance Certificate is thereafter recovered furnished pursuant to that certain Second Amended and Restated Credit Agreement (as amended, restated, or otherwise modified from such Lendertime to time, such disposition the "Agreement") dated as of April 26, 1996 among GCI Communication Corp. (the "Company"), the banks party thereto and arrangements shall NationsBank of Texas, N.A. as Administrative Agent for the Banks. Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Agreement. THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Company;
2. I have reviewed the terms of the Agreement and I have made, or have caused to be rescinded made under my supervision, a detailed review of the transactions and conditions of the Parent, the Company and the amount restored to Subsidiaries during the extent accounting period covered by the attached financial statements, dated as of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.;
Appears in 1 contract
Setoff. Regardless of the adequacy of any security for the Obligationscollateral, during the continuance of if any Event of DefaultDefault shall have occurred and be continuing, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender the Administrative Agent or any Affiliate thereof other Creditor Party to either Borrower or any of the Loan Parties Guarantors and any securities or other property of either Borrower or any of the Loan Parties Guarantors in the possession of the Administrative Agent or such Lender other Creditor Party or any Affiliate of their respective Affiliates may, at any time, solely with the consent of the Administrative Agent, and, with respect to such other Creditor Party with the consent of the Required Lenders, without demand or notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of AgentBorrowers and the Guarantors), in whole or in part, be applied to or set off by the Administrative Agent or such other Creditor Party against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become dueObligations, now existing or hereafter arising, of the Loan Parties to such Lender. Each Borrowers or any of the Lenders agrees Guarantors to the Administrative Agent or such other Creditor Party regardless of the adequacy of any other collateral securing the Loans. The Administrative Agent and each of the other Creditor Parties agree with and among each other Lender that (i) if an amount to be set off is to be applied to Indebtedness of the Borrowers or any of the Guarantors to the Administrative Agent or such Lender other Creditor Party, such amount shall be applied ratably first to Obligations owed to the Creditor Party exercising such right of set off and pro rata to any other similarly situated Creditor Parties, and then to the Obligations owed all other Creditor Parties, including, without limitation, Reimbursement Obligations owed to the Issuing Bank or all Lenders, and (ii) if the Administrative Agent or such other Creditor Party shall receive from a Loan Partyeither Borrower or any Guarantor or any other source, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement in the name of, or constituting Reimbursement Obligations owed to, the Administrative Agent or such other Creditor Party by proceedings against a Borrower or a Guarantor at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note Obligations owed to the Administrative Agent or Notes held by such Lender (but excluding the Swing Loan Note) other Creditor Party any amount in excess of its ratable portion of the payments received by all of the Lenders Creditor Parties with respect to the Notes held by debt evidenced hereby corresponding to all of the LendersCreditor Parties, such Lender Creditor Party will make such disposition and arrangements with the other Lenders Creditor Parties with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Creditor Party receiving in respect of the Notes held by it debt evidenced hereby in its name or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderCreditor Party, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement andPRIOR TO THE ADMINISTRATIVE AGENT OR ANY OTHER CREDITOR PARTY EXERCISING ANY RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, pending such paymentCREDITS OR OTHER PROPERTY OF EITHER BORROWER OR ANY GUARANTOR ARE HEREBY KNOWINGLY, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffVOLUNTARILY AND IRREVOCABLY WAIVED.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Chartermac)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Parent Borrower or any other Loan Party, any such notice being waived by the Parent Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owning by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect Subsidiary of the Parent Borrower. Each Lender and L/C Issuer agrees promptly to notify the Parent Borrower and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Setoff. Regardless of Each Secured Party shall, upon the adequacy of any security for the Obligations, occurrence and during the continuance of any Default described in clauses (b) through (d) of Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence and during the continuance of any other Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of have the right of setoff, or otherwise, and shall retain to appropriate and apply to the payment of the Note Obligations owing to it (whether or Notes held not then due), and (as security for such Obligations) Holdings and each Borrower hereby grants to each Secured Party a continuing security interest in, any and all balances, credits, deposits, accounts or moneys of Holdings or such Borrower then or thereafter maintained with such Secured Party; PROVIDED, HOWEVER, that any such appropriation and application shall be subject to the provisions of Section 4.8. Each Secured Party agrees promptly to notify Holdings and the Company and the Administrative Agent after any such setoff and application made by such Lender Secured Party; PROVIDED, HOWEVER, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Secured Party under this Section are in addition to other rights and remedies (including other rights of setoff under applicable law or otherwise) which such Secured Party may have. Notwithstanding the foregoing, no Secured Party shall appropriate or apply to the payment of Obligations owed to it by Holdings, Intermediate Holdings, the Company or any Domestic Subsidiary Guarantor (each, a "U.S. PERSON") (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect only to the Notes held extent such Obligation is owed by all any such U.S. Person, and without limitation of the Lenders, any Foreign Subsidiary's Obligations as to which such Lender will make such disposition U.S. Person may be a guarantor) and arrangements with the no security interest is granted by any Foreign Borrower or other Lenders Foreign Subsidiary that is an Obligor with respect to such excessObligations in, either by way of distributionany balances, pro tanto assignment of claimscredits, subrogation deposits, accounts or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part moneys of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that Foreign Borrower or other Foreign Subsidiary at any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance time maintained with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSecured Party.
Appears in 1 contract
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Syndication Party and the Letter of Credit Bank, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Syndication Party, the 1697821.11-New York Server 7A - MSW Letter of currency, maturityCredit Bank, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of AgentAffiliate, be applied to or set off for the credit or the account of Borrower against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of Borrower now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Syndication Party, the Letter of Credit Bank or their respective Affiliates, irrespective of whether by voluntary paymentor not such Syndication Party, exercise the Letter of Credit Bank or Affiliate shall have made any demand under this Credit Agreement or any other Loan Document and although such obligations of Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Syndication Party or the right Letter of setoffCredit Bank different from the branch, office or otherwise, and shall retain and apply to the payment of the Note Affiliate holding such deposit or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Syndication Party shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 15.30 and, pending such payment, shall be segregated by such Defaulting Lender Syndication Party from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, the Letter of Credit Bank, and the LendersSyndication Party, and (by) the Defaulting Lender Syndication Party shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations Bank Debt owing to such Defaulting Lender Syndication Party as to which it exercised such right of setoff. The rights of each Syndication Party, the Letter of Credit Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Syndication Party, the Letter of Credit Bank or their respective Affiliates may have. Each Syndication Party and the Letter of Credit Bank agrees to notify Borrower 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.
Appears in 1 contract
Samples: Credit Agreement (CHS Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owning by such Lender or its Affiliates, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect subsidiary of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and, each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and, such Lender may have.
Appears in 1 contract
Samples: Second Lien Credit Agreement (SMART Technologies Inc.)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing hereunder with respect to a party (the “Defaulting Party”), the other party (the “Non-Defaulting Party”) is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held and any other obligations (in whatever currency and whether matured or unmatured, maturity, contingent or otherwise) at any time owed by the Non-Defaulting Party to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property account of the Loan Parties in Defaulting Party under any other agreements between the possession of such Lender or any Affiliate may, without notice to any Loan Defaulting Party (any such notice being expressly waived by Loan Parties) but with and the prior written approval of Agent, be applied to or set off Non-Defaulting Party against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of the Defaulting Party now existing or hereafter arisingexisting under this Agreement or any Collateral Document to the Non-Defaulting Party, irrespective of whether or not the Non-Defaulting Party shall have made any demand under this Agreement or under any Collateral Document and irrespective of whether such obligations of the Loan Parties Defaulting Party may be contingent or unmatured or are owed to such Lender. Each a branch or office of the Lenders agrees with each other Lender that if Non-Defaulting Party different from the branch or office holding such Lender shall receive from a Loan Partydeposit or obligated on such indebtedness, whether by voluntary payment, exercise and the liability of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders Non-Defaulting Party with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation deposits or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements other obligations shall be rescinded discharged promptly and the amount restored in all respects to the extent they are so set off. The rights of such recoverythe Non-Defaulting Party under this Section 14 are in addition to any other rights and remedies, but without interest. In the event that any Defaulting Lender shall exercise any such right including other rights of setoff, (a) all amounts so set off shall be paid over immediately that the Non-Defaulting Party may have by contract or at law. The Non-Defaulting Party agrees to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) notify the Defaulting Lender Party promptly after any such setoff and application, provided, however, that the failure to give such notice shall provide promptly to not affect the Agent a statement describing in reasonable detail the Obligations owing to validity of such Defaulting Lender as to which it exercised such right of setoffsetoff and application.
Appears in 1 contract
Samples: Securities Lending and Services Agreement (Glenmede Fund Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Agent and its Affiliates, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by the Borrowers (on their own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of and other Indebtedness (in any currency) at any time owing by, maturitysuch Agent and its Affiliates, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties Obligations owing to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, Agent and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the LendersAffiliates, such Lender will make and its Affiliates or such disposition L/C Issuer and arrangements with the its Affiliates hereunder or under any other Lenders with respect to Loan Document, now or hereafter existing, irrespective of whether or not such excessAgent, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition L/C Issuer or such Affiliate shall have made demand under this Agreement or any other Loan Document and arrangements although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, none of each Agent and its Affiliates, each Lender and its Affiliates and each L/C Issuer and its Affiliates shall be rescinded have a right to set off and apply any deposits held or other Indebtedness owing by such Agent or its Affiliates, such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrowers and the amount restored Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the extent validity of such recoverysetoff and application. The rights of each Agent, but without interest. In the event that any Defaulting each Lender shall exercise any such right and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that such Agent, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by Lender and such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffL/C Issuer may have.
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or specific, special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of any Obligor against and on account of the Obligations of Obligors arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Obligations and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of any Obligor now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Obligor shall have any claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSection 13.5.
Appears in 1 contract
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance con- tinuance of any Event of Default, each Lender, each Issuing Bank and any deposits (general or specific, time or demand, provisional or final, regardless Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or Issuing Bank is hereby authorized by the Borrower at any Affiliate thereof time or from time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of the Loan Parties Borrower against and on account of the Obligations of the Borrower to such Lender, Issuing Bank or any of their Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in con-nection with this Agreement, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Collateral Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XII and even though such Obligations may be contingent or unmatured. Each Lender and each Issuing Bank agrees that it shall not, without the express consent of the Lenders agrees with each other Lender Requisite Lenders, and that if such Lender shall receive from a Loan Partyit shall, whether by voluntary paymentto the extent it is lawfully entitled to do so, exercise upon the request of the right Requisite Lenders, exer-cise its setoff rights hereunder against any accounts of setoffthe Borrower, any of its Subsidiaries, or otherwise, and shall retain and apply to the payment of the Note a Guarantor now or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders hereafter maintained with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffor Issuing Bank.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Corp)
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender, each Issuing Bank and any deposits (general or specific, time or demand, provisional or final, regardless Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or Issuing Bank is hereby authorized by each Borrower at any Affiliate thereof time or from time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to combine accounts or to set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of such Borrower against and on account of the Loan Parties Obligations of any Borrowers to such Lender, Issuing Bank or any of their Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in connection herewith, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Administrative Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XI and even though such Obligations may be contingent or unmatured. Each Lender shall give the applicable Borrower notice of any action taken pursuant to this Section 14.05 promptly upon the occurrence thereof provided that any failure to do so shall not limit any right of a Lender to take such action. Each Lender and each Issuing Bank agrees that it shall not, without the express consent of the Lenders agrees with each other Lender Requisite Lenders, and that if such Lender shall receive from a Loan Partyit shall, whether by voluntary paymentto the extent it is lawfully entitled to do so, upon the request of the Requisite Lenders, exercise its setoff rights hereunder against any accounts of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Credit Party or any part of such excess payment is thereafter recovered from Borrower Subsidiary now or hereafter maintained with such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffor Issuing Bank.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to any Borrower or any other Loan Party, any such notice being waived by the Borrowers (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing to, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Restricted Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its -173173- Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect subsidiary of Holdings. Each Lender and L/C Issuer agrees promptly to notify the Parent Borrower and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.10 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Samples: Credit Agreement (Clear Channel Communications Inc)
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and any Affiliate of any Lender is hereby authorized by Borrower at any time or from time to time, without notice to any Person (any such notice being hereby expressly waived) to combine accounts or to set off and to appropriate and to apply any and all deposits (general or specificspecial, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other Indebtedness at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate of their Affiliates to or for the credit or the account of Borrower against and on account of the Obligations of Borrower to such Lender or any of their Affiliates, including, but not limited to, all Loans and all claims of any nature or description arising out of or in connection herewith, irrespective of whether or not (i) such Lender shall have made any demand hereunder or (ii) the Administrative Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XI and even though such Obligations may be contingent or unmatured. Each Lender shall give Borrower notice of any action taken pursuant to this Section 14.05 promptly upon the occurrence thereof provided that any failure to do so shall not limit any right of a Lender to take such action. Each Lender agrees that it shall not, without the express consent of the Requisite Lenders, and that it shall, to the Loan Parties and any securities or other property extent it is lawfully entitled to do so, upon the request of the Loan Parties in the possession Requisite Lenders, exercise its setoff rights hereunder against any accounts of any Credit Party Entity now or hereafter maintained with such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Samples: Credit Agreement (NMHG Holding Co)
Setoff. Regardless of If and to the adequacy of extent any security for payment is not made when due hereunder, each Credit Party is hereby authorized at any time and from time to time, to the Obligationsfullest extent permitted by applicable law, during the continuance of to set off and apply any Event of Default, any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency, maturity, ) at any time held and other obligations (in whatever currency) at any time owing by such Credit Party to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property account of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off Guarantor against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of Guarantor now existing or hereafter arising, of the Loan Parties existing under this Guaranty to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Credit Party, irrespective of whether by voluntary paymentor not such Credit Party shall have made any demand under this Guaranty and although such obligations of Guarantor may be contingent or unmatured or are owed to a branch, exercise of the right of setoff, office or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part Affiliate of such excess payment is thereafter recovered Credit Party different from the branch, office or Affiliate holding such Lenderdeposit or obligated on such indebtedness; provided, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In that in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Section 2.15 of the Credit Agreement 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 Agent and the Lenderseach Credit Party, and (by) 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. The rights of each Credit Party under this Section are in addition to other rights and remedies (including other rights of setoff) that such Credit Party may have. Each Credit Party agrees to notify Borrower and Administrative Agent promptly after any such setoff and 4877-6131-2829 v.16 Exhibit E – Page 5 application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
Appears in 1 contract
Samples: Credit Agreement (NVR Inc)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting obligation of a Subsidiary Guarantor now or hereafter existing under this Agreement or any other Loan Document shall have become due and payable, each Lender Party shall exercise have the right from time to time, without notice to such Subsidiary Guarantor, to set off against and apply to such due and payable amount any obligation of any nature of such Lender Party to such Subsidiary Guarantor, including all deposits (whether time or demand, general or special, provisionally or finally credited, however evidenced) now or hereafter maintained by such Subsidiary Guarantor with such Lender Party. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether such obligation to such Subsidiary Guarantor is absolute or contingent, matured or unmatured (it being agreed that such Lender Party may deem such obligation to be then due and payable at the time of such setoff), regardless of the offices or branches through which the parties are acting with respect to the offset obligations, and regardless of the existence or adequacy of any other direct or indirect security or any other right or remedy available to such Lender Party. Nothing in this Agreement or any other Loan Document shall be deemed a waiver of or restriction on any right of setoffsetoff or banker's lien available to a Lender Party under this Section 5.8, (a) all amounts so set off shall be paid over immediately to the Agent for further application at law or otherwise. Each Subsidiary Guarantor hereby agrees that any affiliate of a Lender Party, and any holder of a participation in accordance with the provisions any obligation of such Subsidiary Guarantor under this Agreement and, pending such paymentAgreement, shall have the same rights of setoff as the Lender Parties as provided in this Section 5.8 (regardless of whether such affiliate or participant otherwise would be segregated by deemed a creditor of such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSubsidiary Guarantor).
Appears in 1 contract
Setoff. Regardless Without limiting the forgoing, and subject to all limitations on each Party’s indemnity obligations and liability hereunder, the Parties agree that all amounts due and payable by an Indemnifying Party to the other Party, shall be subject to deduction or set-off against any amounts due and payable to such Indemnifying Party by the other Party (or its Affiliates) (the “Setoff Claimant”) hereunder or under any other agreements between the Parties (or their Affiliates), including the Seller Note; provided, however, that the Setoff Claimant shall notify in writing the Indemnifying Party specifying in reasonable detail the basis for the indemnification claim (the “Setoff Claim”) under which the Setoff Claimant claims amounts are due and payable from the Indemnifying Party, including the amount of money at issue, and if the Indemnifying Party shall in writing deny or dispute such claim within fifteen (15) business days, then in such event the Setoff Claimant’s sole right to setoff, deduct, and/or withhold payments to the Indemnifying Party or its Affiliates shall be exercised exclusively by the Setoff Claimant depositing the amount of such payments with an agreed upon independent third party retained by the Purchaser and Seller to hold such funds in escrow or with a court of competent jurisdiction, if Setoff Claimant shall decide to initiate legal proceedings, pending a mutual agreement executed by the Parties or a binding determination by court as to the rights of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties parties and any securities or other property disposition of the Loan Parties deposit payments held in escrow. A Setoff Claimant that sets off, deducts or withholds any amounts from the other party, but fails to comply with the escrow procedures set forth in the possession of such Lender or any Affiliate may, without notice immediately preceding sentence shall be deemed to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of waive its ratable portion of the payments received by all of the Lenders rights with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffapplicable Setoff Claim.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy Lender provided by law, subject to any notice or other requirement contained in the DIP Financing Orders and after complying with the notice provisions of any security for the ObligationsInterim Order or the Final Order, upon the occurrence and during the continuance of any Event of DefaultDefault and the making of the request or the granting of the consent specified by Section 8.02 to authorize the Lender to declare the Loans due and payable pursuant to the provisions of Section 8.02, the Lender and each of its Affiliates is authorized at any time and from time to time, without (i) further order of or application to the Bankruptcy Court and (ii) prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other indebtedness at any time owing by, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to the Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not the Lender shall have made demand under this Credit Agreement or any other Loan Document and although such Defaulting Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness. The Lender as agrees promptly to which it exercised notify the Borrower after any such right setoff and application made by the Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Lender and its Affiliates may have.
Appears in 1 contract
Samples: Secured Debtor in Possession Credit and Security Agreement (Ata Holdings Corp)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owning by such Lender or its Affiliates to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect Subsidiary of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender may have. Notwithstanding the foregoing, no amounts set off with respect to any Guarantor shall be applied to any Excluded Swap Obligation of such Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Cole Haan, Inc.)
Setoff. Regardless (a) Subject to Section 9.7(b), if any indemnification payment obligation of any of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof Seller Parties pursuant to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders this ARTICLE 9 with respect to the Notes held any Damages suffered or incurred by all of the Lendersany Purchaser Indemnified Person is not paid when due, then Purchaser shall be entitled, but not obligated, to recover such Lender will make amounts from such disposition and arrangements with the other Lenders with respect Person under this Agreement by setting off such amounts against any Earn-out Payment owed to such excessSeller Party and/or any amount owed to such Seller Party pursuant to Section 2.7 (and each Seller Party agrees to take all such action to cause Seller Party to enable any such setoff); provided, either by way however, that prior to Purchaser exercising its rights under this Section 9.7(a), Purchaser shall first provide written notice to the Seller Representative of distribution, pro tanto assignment of claims, subrogation or otherwise as Purchaser’s intent to exercise its rights under this Section 9.7(a) and the Seller Party shall result in each Lender receiving in respect of have the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part right to pay to the applicable Indemnified Person the amount of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Damages (i) within thirty (30) days of receipt of such recovery, but without interest. In notice if the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application Damages claimed by Purchaser are not disputed in accordance with the provisions Section 9.7(b) below or (ii) within thirty (30) days of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held a final resolution as set forth in trust for the benefit of the Agent and the Lenders, and Section 9.7(b) below.
(b) If the Defaulting Lender shall provide promptly Seller Party disagrees with any Damages claimed by any Purchaser Indemnified Person that are to be setoff in accordance with Section 9.7(a), the Agent a statement Seller Representative may, within thirty (30) days after the Seller Representative’s receipt of the notice described in Section 9.7(a) (the “Setoff Notification Period”), notify Purchaser in writing of such disagreement by setting forth the Seller Representative’s calculation of the applicable amounts in dispute and describing in reasonable detail the Obligations owing basis for such disagreement (an “Setoff Objection Notice”). If a Setoff Objection Notice is not delivered to Purchaser prior to the expiration of the Setoff Notification Period, then the Damages claimed by such Purchaser Indemnified Person may be setoff in accordance with Section 9.7(a). If a Setoff Objection Notice is delivered to Purchaser prior to the expiration of the Setoff Notification Period, then the Seller Representative and Purchaser shall negotiate in good faith to resolve their disagreements with respect to the items set forth in such Setoff Objection Notice. If the Seller Representative and Purchaser are unable to resolve all such disagreements within thirty (30) days after Purchaser’s receipt of the Setoff Objection Notice, either Purchaser or Seller Representative may bring suit to resolve the matter in accordance with Section 11.6. Until a final resolution is reached, either by agreement of the Purchaser and Seller Representative or resolution of a suit, Purchaser shall be entitled to withhold the amount in dispute from any Earn-out Payment owed to such Defaulting Lender Seller Party as to which it exercised such right of setoffmay be liable.
Appears in 1 contract
Samples: Stock Purchase Agreement (Covenant Logistics Group, Inc.)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, maturity, the L/C Issuer or any such Affiliate to or for the credit or the branch where account of any Borrower or any other Loan Party against any and all of the obligations of such deposits are held) Borrower or such Loan Party now or hereafter existing under this Agreement or any other sums credited by or due from any Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any Affiliate thereof demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to the Loan Parties and any securities a branch or other property of the Loan Parties in the possession office of such Lender or any Affiliate maythe L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agentthat, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.15 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 clxxii CHAR1\1792192v4 Administrative Agent and the Lenders, Lenders and (by) 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. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Company 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.
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrower at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrower or any deposits other Person (any such notice being hereby expressly waived) to set off and to appropriate and to apply any and all deposits, general or specificspecial (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or owing by Agent, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of Borrower against and on account of the Obligations of Borrower arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Obligations and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but Borrower shall not have a claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSECTION 12.5.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Administrative Agent and Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, the Administrative Agent and Lender is authorized at any time and from time to time, without prior notice to the Borrower, any such notice being waived by the Borrower to the fullest extent permitted by Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final), regardless of currencyother than deposits in fiduciary accounts as to which the Borrower is acting as fiduciary for another Person, maturityat any time held by, and other Indebtedness at any time owing by, the Administrative Agent or Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property account of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off Borrower against the payment of Obligations and any and all Obligations owing to the Administrative Agent or Lender hereunder or under any other liabilitiesLoan Document, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, as of the Loan Parties to such Lender. Each Closing Date or thereafter existing, irrespective of whether or not the Lenders agrees with each other Lender that if Administrative Agent or such Lender shall receive have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from a Loan Party, whether by voluntary payment, exercise that of the right applicable deposit or Indebtedness. Each Administrative Agent and Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by the Administrative Agent or Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff, or otherwise, ) that the Administrative Agent and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffmay have.
Appears in 1 contract
Samples: Escrow Credit Agreement (CommScope Holding Company, Inc.)
Setoff. Regardless To the extent DR Investor or the Company ------ and/or their respective successors ("DRI Entities") suffer or incur any direct out-of-pocket damages (but not any consequential, special or exemplary damages or damages for lost sales or loss of reputation or goodwill) ("Direct Damages") as a result of or arising out of a breach by JF Investor of any of the adequacy covenants contained in this Partnership Agreement, the DRI Entities may withhold and set off any such Direct Damages against any payments due to JF Investor under this Partnership Agreement and up to thirty percent (30%) of each payment due to JF Investor, PCo. and SCE under any other agreement between any DRI Entity, on the one hand, and JF Investor, SCE or PCo. on the other hand, including, without limitation, the Bylaws and any Related Agreement. In addition, to the extent any money damages are awarded by an arbitral tribunal or a court of competent jurisdiction to any DRI Entity for a breach by JF Investor of any security for of the Obligationscovenants contained in this Partnership Agreement, during the continuance DRI Entities may satisfy such award by withholding and offsetting against such damages any payments due to JF Investor under this Partnership Agreement and up to thirty percent (30%) of each payment due to JF Investor, PCo. or SCE under any Event of Defaultother agreement between any DRI Entity, on the one hand, and JF Investor, SCE or PCo. on the other hand, including, without limitation, the Bylaws and any deposits (general or specificRelated Agreement, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties extent not already withheld and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply offset pursuant to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect preceding sentence. Notwithstanding anything to the Notes held by all of contrary set forth in this Partnership Agreement, the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation DRI Entities may not withhold or otherwise as shall result in each Lender receiving offset against Direct Damages or awarded money damages any payments made in respect of the Notes held Put. Price, Call Price, dividends payable to JF Investor (or its permitted successors) pursuant to this Partnership Agreement or the Bylaws or the Purchase Price (as defined in the JF Asset Purchase Agreement). No DRI Entity shall be required to use any remedy set forth in this section, and the DRI Entities may pursue any other methods permitted by it its proportionate payment law (subject to Section 12.3, specifying arbitration as contemplated the final dispute resolution mechanism with respect to this Partnership Agreement) to recover such Direct Damages or other damages at any time until they receive the full amount of the such damages. The rights granted pursuant to this Section shall not affect in any way the rights of the DRI Entities to pursue the other remedies set forth in this Partnership Agreement. DR Investor shall provide JF Investor with written notice at the time of exercise by this Agreement; provided that if all DR Investor or any part DR Entity of such excess payment is thereafter recovered from such Lenderany of their rights under this Section, such disposition and arrangements shall be rescinded specifying the amount withheld or setoff and the amount restored to the extent and kind of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as Direct Damages or awarded money damages to which it exercised such right of setoffwithholding or setoff relates.
Appears in 1 contract
Samples: Partnership Agreement (Delco Remy International Inc)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Table of Contents Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owning by such Lender or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or indirect subsidiary of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender under this Section 11.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender may have.
Appears in 1 contract
Samples: Senior Unsecured Term Loan Agreement (Catalent Pharma Solutions, Inc.)
Setoff. Regardless of From and after the adequacy of any security for the Obligations, during the continuance occurrence of any Event of DefaultDefault and during the continuance thereof, in addition to (and not in limitation of) any rights now or hereafter granted under Applicable Law to Administrative Agent, LC Issuer, any Lender, or, subject to the provisions of Section 13.1(d), any Participant, each subsequent holder of any of the Obligations, and each of their respective Affiliates (collectively, for purposes of this Section 15.6, the “Setoff Parties” and, individually, a “Setoff Party”), is hereby authorized by each Credit Party to setoff and to appropriate and apply any and all deposits (general or specificspecial, time or demand, provisional including Debt evidenced by certificates of deposit, in each case, whether matured or finalun-matured, regardless but excluding (x) any amounts held by any Setoff Party in any escrow payroll, trust, tax or fiduciary account and (y) without the prior consent of currencyAdministrative Agent, maturityany Collection Account, and any other Debt at any time held or owing by any Setoff Party to or for the credit or the branch where account of any Credit Party) against the Obligations as provided in this Agreement, irrespective of whether (a) any demand for such deposits Obligations has been made; or (b) the Obligations have been accelerated as contemplated in Section 11.2; or (c) such Obligations are held) contingent or other un-matured. Any sums credited obtained by or due from any Lender or any Affiliate thereof Setoff Party shall be subject to the Loan Parties and requirements for application of payments to the Obligations as set forth in this Agreement. The rights granted to each Setoff Party under this Section 15.6 may be exercised at any securities time or other property of the Loan Parties in the possession of such Lender or any Affiliate mayfrom time to time, without notice to any Loan Credit Party or any other Person, except that each Setoff Party shall notify Administrative Agent promptly (but in any event within one (1) Business Day) after exercising such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwisespecifying the amount thereof. Each Credit Party hereby waives any right that it may have as a matter of Applicable Law to any such notice. In addition to the foregoing, and shall retain and apply notwithstanding any provision hereof to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount contrary, in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 4.2 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 Agent Administrative Agent, LC Issuer, Swing Line Lender and the other Lenders, and (by) 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.
Appears in 1 contract
Samples: Credit Agreement (Alpha Metallurgical Resources, Inc.)
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or specific, special (including certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of Borrowers arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Obligations and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Borrower shall have any claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSection 13.5.
Appears in 1 contract
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof Notwithstanding anything contained herein to the Loan Parties contrary, and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice as a non-exclusive alternative to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwisethe Purchaser to indemnification hereunder, and shall retain and apply in addition to all other remedies provided by law, but subject to the payment provisions hereof, the Purchaser has the absolute and unconditional right to set off the amount of any Claim against unpaid installments of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable cash portion of the payments received Purchase Price as they become due under Section 1.3(b), above. If the disposition of any Claim results in a payment being made by all the Company (and Subsidiaries) or by the Purchaser of cash or other evidence of value, such setoff shall be accomplished by a reduction in the amount of the Lenders with respect to next due installment, and thereafter of each succeeding installment, until the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part amount of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestsetoff has been deducted in full. In the event that any Defaulting Lender shall exercise any such the Purchaser claims to be entitled to assert a right of setoff hereunder, it shall so notify the Seller not less than 15 days prior to the due date of any Purchase Price against which such setoff is asserted. Such notice shall set forth the nature and the amount of the Claim which is the basis of the asserted setoff. If within 10 days of the giving of such notice, (a) all amounts so set off the Seller shall notify the Purchaser that the Seller does not agree with the amount or validity of the Claim, and if the amount and validity of the Claim has not theretofore been determined by a final order of a court of competent jurisdiction, then at the time the payment to the Seller against which the right of setoff is asserted becomes due, the Purchaser shall deposit the amount of the asserted setoff with an escrow agent mutually acceptable to the parties. If the parties are unable to agree on a mutually acceptable escrow agent, each party shall choose an escrow agent, ant the two escrow agents shall then choose a third escrow agent to serve as escrow agent hereunder. Any such deposit by Purchaser shall be paid over immediately deemed to constitute the fulfillment of its obligation to make payment to the Agent for further application in accordance with Seller of the provisions of this Agreement andamount so deposited, pending and conversely, any failure to make such payment, deposit shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffdefault under Section 1.3(b).
Appears in 1 contract
Setoff. Regardless (a) In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to which it exercised notify the Borrower and the Administrative Agent after any such right set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO BANK OR THE ADMINISTRATIVE AGENT SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED BANKS OR, TO THE EXTENT REQUIRED BY SECTION 10.01 OF THIS AGREEMENT, ALL OF THE BANKS, OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY BANK OR THE ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED BANKS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE BANKS AND THE ADMINISTRATIVE AGENT HEREUNDER.
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived) to set off and to appropriate and to apply any and all deposits, general or specificspecial (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or owing by Agent, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of Borrowers arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Outstandings and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Borrower shall have a claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSection 12.5.
Appears in 1 contract
Setoff. Regardless of In addition to any Liens granted under the adequacy of ------ Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender, each Issuing Bank and any deposits (general or specific, time or demand, provisional or final, regardless Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or Issuing Bank is hereby authorized by the Borrower at any Affiliate thereof time or from time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of the Loan Parties Borrower against and on account of the Obligations of the Borrower to such Lender. Each , Issuing Bank or any of their Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Agent, at the request or with the consent of the Lenders Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article ------- XII and even though such Obligations may be contingent or unmatured. --- Each Lender and each Issuing Bank agrees with each other Lender that if such Lender it shall receive from a Loan Partynot, whether by voluntary paymentwithout the express consent of the Requisite Lenders, and that it shall, to the extent it is lawfully entitled to do so, upon the request of the Requisite Lenders, exercise its setoff rights hereunder against any accounts of the right of setoffBorrower, the Parent Guarantor or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders Subsidiaries, now or hereafter maintained with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right either of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffthem.
Appears in 1 contract
Setoff. Regardless In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of the adequacy limitation of any security for the Obligationssuch rights, during the continuance of any an Event of Default, the Administrative Agent and each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Grantor, any such notice being hereby expressly waived by each Grantor to the fullest extent permitted by applicable law, to set off and to appropriate and apply any and all deposits (general or specificspecial) and any other Indebtedness at any time held or owing by the Administrative Agent or such Lender (including, time without limitation, by branches and agencies of the Administrative Agent or demand, provisional such Lender wherever located) to or final, regardless of currency, maturity, for the credit or the branch where account of any Grantor against and on account of the Obligations of such deposits are held) or other sums credited by or Grantor then due from any Lender or any Affiliate thereof and payable to the Loan Parties and Administrative Agent or such Lender under this Agreement or under any securities or other property of the Loan Parties other Credit Documents, including, without limitation, all interests in Obligations of the possession of Borrowers purchased by such Lender or any Affiliate maypursuant to Section 12.4(b) of the Credit Agreement, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilitiesclaims of any nature or description then due and payable arising out of or connected with this Agreement or any other Credit Document, direct, irrespective of whether or indirect, absolute not the Administrative Agent or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether have made any demand hereunder and although said deposits or Indebtedness owing by voluntary payment, exercise of the right of setoff, Administrative Agent or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent or any of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such paymentthem, shall be segregated contingent or unmatured. The Administrative Agent and each Lender shall notify such Grantor promptly of any such setoff and the application made by the Administrative Agent or such Defaulting Lender from its other funds and deemed held in trust for the benefit of the proceeds thereof, provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and the Lenderseach Lender under this Section 8.6 are in addition to other rights and remedies (including, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right without limitation, other rights of setoff) which the Administrative Agent or such Lender may have.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (ABX Holdings, Inc.)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Syndication Party and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held, maturityand other obligations (in whatever currency) at any time owing, by such Syndication Party or any such Affiliate, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property account of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off Borrower against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of Borrower now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each Syndication Party or its Affiliates, irrespective of whether or not such Syndication Party or Affiliate shall have made any demand under this Credit Agreement or any other Loan Document and although such obligations of Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Syndication Party different from the Lenders agrees with each other Lender that if branch, office or Affiliate holding such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, deposit or otherwise, and shall retain and apply to the payment of the Note or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Syndication Party shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 15.30 and, pending such payment, shall be segregated by such Defaulting Lender Syndication Party from its other funds and deemed held in trust for the benefit of the Administrative Agent and the LendersSyndication Party, and (by) the Defaulting Lender Syndication Party shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations Bank Debt owing to such Defaulting Lender Syndication Party as to which it exercised such right of setoff. The rights of each Syndication Party and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Syndication Party or its Affiliates may have. Each Syndication Party agrees to notify Borrower 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.
Appears in 1 contract
Samples: Credit Agreement (CHS Inc)
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or specific, special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of either Borrower against and on account of the Obligations of Borrowers arising under the Loan Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Outstandings and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of either Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Borrower shall have any claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSection 12.5.
Appears in 1 contract
Samples: Loan and Security Agreement (Danka Business Systems PLC)
Setoff. Regardless The Borrower hereby agrees that, if an Event of Default shall have occurred and be continuing or shall exist, to the fullest extent permitted by law, if any Obligation of the adequacy Borrower shall be due and payable (by acceleration or otherwise), each Lender Party shall have the right, without notice to the Borrower, to setoff against and to appropriate and apply to such Obligation any indebtedness, liability or obligation of any security for nature owing to the ObligationsBorrower by such Lender Party, during the continuance of any Event of Default, any including but not limited to all deposits (general or specific, whether time or demand, provisional general or finalspecial, provisionally credited or finally credited, whether or not evidenced by a certificate of deposit) now or hereafter maintained by the Borrower with such Lender Party. Such right shall be absolute and unconditional in all circumstances and, without limitation, shall exist whether or not such Lender Party or any other Person shall have given notice or made any demand to the Borrower or any other Person, whether such indebtedness, obligation or liability owed to the Borrower is contingent, absolute, matured or unmatured (it being agreed that such Lender may deem such indebtedness, obligation or liability to be then due and payable at the time of such setoff), and regardless of currencythe existence or adequacy of any collateral, maturityguaranty or any other security, right or the branch where such deposits are held) or other sums credited by or due from remedy available to any Lender or any Affiliate thereof other Person. The Borrower hereby agrees that, to the Loan Parties fullest extent permitted by law, any Participant and any securities branch, subsidiary or other property affiliate of any Lender Party or any Participant shall have the same rights of set-off as a Lender Party as provided in this Section (regardless of whether such Participant, branch, subsidiary or affiliate would otherwise be deemed in privity with or a direct creditor of the Loan Parties Borrower). The rights provided by this Section are in the possession addition to all other rights of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set set-off against the payment of Obligations and any banker's lien and all other liabilitiesrights and remedies which any Lender (or any such Participant, directbranch, subsidiary or indirectaffiliate) may otherwise have under this Agreement, absolute any other Loan Document, at law or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoffin equity, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount nothing in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Agreement or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements Loan Document shall be rescinded and deemed a waiver or prohibition of or restriction on the amount restored to the extent rights of such recovery, but without interest. In the event that any Defaulting Lender shall exercise set-off or bankers' lien of any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffPerson.
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted under any of the adequacy DIP Loan Documents and any rights and remedies now or hereafter available under Applicable Law (including other rights of setoff), DIP Agent and each DIP Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate mayDefault exists, without notice to Borrowers or any Loan Party other Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits, general or special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other liabilitiesDebt at any time held or owing by DIP Agent, directsuch DIP Lender or any of their Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of Borrowers arising under the DIP Loan Documents to DIP Agent, such DIP Lender or any of their Affiliates, including all Revolver Loans and Letter of Credit Outstandings and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) DIP Agent or such DIP Lender shall have made any demand hereunder, (ii) DIP Agent, at the request or with the consent of Required DIP Lenders, shall have declared the principal of and interest on the Revolver Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured, or indirect(iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, absolute or contingent, due or to become due, now existing or hereafter arising, each of the Loan Parties to such Lender. Each of the DIP Agent and DIP Lenders agrees with each other Lender that if such Lender it shall receive from a Loan Partynot, whether by voluntary paymentwithout the express consent of Required DIP Lenders, and that it shall (to the extent that it is lawfully entitled to do so) upon the request of Required DIP Lenders, exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with DIP Agent, such DIP Lender or any Affiliate of any of them, but no Borrower shall have a claim or cause of action against DIP Agent or any DIP Lender for any setoff made without the consent of Required DIP Lenders, and the validity of any such setoff shall not be impaired by the absence of such consent. If any party (or its Affiliate) exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSection 12.5.
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Standard Register Co)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of and other Indebtedness (in any currency) at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off an apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is Foreign Subsidiary that is a CFC or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Setoff. Regardless In addition to any Liens granted under any of the adequacy DIP Financing Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrower at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice, except as required by the Financing Orders, to Borrower or any deposits other Person (any such notice being hereby expressly waived) to set off and to appropriate and to apply any and all deposits, general or specificspecial (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or owing by Agent, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of Borrower against and on account of the Obligations of Borrower arising under the DIP Financing Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Outstandings and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Required Lenders, shall have declared the principal of and interest on the Revolver Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders, and that it shall (to the Loan Parties and any securities or other property extent that it is lawfully entitled to do so) upon the request of the Loan Parties in the possession Required Lenders, exercise its setoff rights hereunder against any accounts of Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but Borrower shall have no claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSECTION 12.5.
Appears in 1 contract
Samples: Post Petition Loan and Security Agreement (Drypers Corp)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Bank and each of its affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency, maturity, ) at any time held and other obligations (in whatever currency) at any time owing by such Bank or any such affiliate to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender account of Borrower or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, of the obligations of Borrower or indirect, absolute or contingent, due or to become due, such Loan Party now existing or hereafter arising, of the existing under this Agreement or any other Loan Parties Document to such LenderBank or any such affiliate, irrespective of whether or not such Bank shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Bank different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Bank and their respective affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Bank or its respective affiliates may have. Each of the Lenders Bank agrees with each other Lender that if to notify Borrower and Agent promptly after any such Lender shall receive from a Loan Partysetoff and application, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part the failure to give such notice shall not affect the validity of such excess payment is thereafter recovered from such Lendersetoff and application. ANY AND ALL RIGHTS TO REQUIRE THE AGENT OR ANY BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recoveryPRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoffCREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement andARE HEREBY KNOWINGLY, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffVOLUNTARILY AND IRREVOCABLY WAIVED.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates (including each L/C Issuer and its Affiliates) is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each other Loan Party and their respective Subsidiaries) to the fullest extent permitted by applicable Law, to set off and appropriate and apply any and all deposits (general or specificspecial, time or demand, provisional or final) in any currency at any time held by, regardless of currency, maturity, or the branch where such deposits are held) or and other sums credited by or due from Indebtedness in any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties currency (in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, each case whether direct or indirect, absolute or contingent, due matured or unmatured) at any time held or owing by, such Lender and its Affiliates (including such L/C Issuer and its Affiliates), to become dueor for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates (including such L/C Issuer and its Affiliates) hereunder or under any other Loan Document, now existing or hereafter arisingexisting, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates (including each L/C Issuer and its Affiliates) shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates (including such L/C Issuer and its Affiliates), as the case may be, to or for the credit or the account of any Subsidiary of a Loan Parties to Party which is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such LenderSubsidiary is not a Subsidiary of the Company. Each of Lender (including each L/C Issuer) agrees promptly to notify the Lenders agrees with each other Lender that if Borrower and the Administrative Agent after any such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, setoff and shall retain and apply to the payment of the Note or Notes held application made by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, including such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this AgreementL/C Issuer); provided that if all or any part the failure to give such notice shall not affect the validity of such excess payment is thereafter recovered from such Lender, such disposition setoff and arrangements shall be rescinded application. The rights of the Administrative Agent and the amount restored each Lender (including each L/C Issuer) under this Section 10.10 are in addition to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right other rights and remedies (including other rights of setoff, (a) all amounts so set off shall be paid over immediately to that the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and such Lender (bincluding such L/C Issuer) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffmay have.
Appears in 1 contract
Samples: Credit Agreement (Alltel Corp)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each of its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and their Subsidiaries against any securities and all Obligations owing to such Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other property Loan Document, now or hereafter existing, irrespective of the whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Parties in the possession Document and although such Obligations may be (i) owed to a branch, office or Affiliate of such Lender or any such L/C Issuer different from the branch, office or Affiliate mayholding such deposit or obligated on such Indebtedness or (ii) contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, without notice no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note any deposits held or Notes held other Indebtedness owing by such Lender (but excluding or its Affiliates or such L/C Issuer or its Affiliates, as the Swing case may be, to or for the credit or the account of any Subsidiary of a Loan NoteParty which is not a “United States person” within the meaning of Section 7701(a)(30) any amount in excess of its ratable portion of the payments received by all Code unless such Subsidiary is not a direct or indirect subsidiary of the Lenders with respect Borrower. Each Lender and L/C Issuer agrees promptly to notify the Notes held Borrower and the Administrative Agent after any such set off and application made by all such Lender or L/C Issuer, as the case may be; provided, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the LendersAdministrative Agent, such Lender will make such disposition each Lender, each L/C Issuer and arrangements with the other Lenders with respect to such excess, either by way each Affiliate of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect any of the Notes held by it its proportionate payment as contemplated by foregoing under this Agreement; provided Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that if all or any part of such excess payment is thereafter recovered from the Administrative Agent, such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of L/C Issuer or such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffAffiliate may have.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which it exercised is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such right Subsidiary is not a direct or US-DOCS\79529473.13 indirect subsidiary of the Borrower. Each Lender and L/C Issuer agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender or L/C Issuer, as the case may be; provided, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender, each Issuing Bank and any deposits (general or specific, time or demand, provisional or final, regardless Affiliate of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or Issuing Bank is hereby authorized by each Borrower at any Affiliate thereof time or from time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilitiesIndebtedness at any time held or owing by such Lender, direct, Issuing Bank or indirect, absolute any of their Affiliates to or contingent, due for the credit or to become due, now existing or hereafter arising, the account of any Borrower against and on account of the Loan Parties Obligations of the Borrowers to such Lender, Issuing Bank or any of their Affiliates, including, but not limited to, all Loans, Letters of Credit, Acceptances and all claims of any nature or description arising out of or in con nection with this Agreement or the Notes, irrespective of whether or not (i) such Lender or Issuing Bank shall have made any demand hereunder or (ii) the Administrative Agent, at the request or with the consent of the Requisite Lenders, shall have declared the principal of and interest on the Loans and other amounts due hereunder and under the Notes to be due and payable as permitted by Article XI and even though such Obligations may be contingent or unmatured. Each Lender and each Issuing Bank agrees that it shall not, without the express consent of the Lenders agrees with each other Lender Requisite Lenders, and that if such Lender shall receive from a Loan Partyit shall, whether by voluntary paymentto the extent it is lawfully entitled to do so, upon the request of the Requisite Lenders, exercise its setoff rights hereunder against any accounts of the right of setoff, any Borrower now or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders hereafter maintained with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent Issuing Bank or any Affiliate of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right either of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffthem.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, after obtaining the prior written consent of the Administrative Agent, each Lender is authorized at any time and from time to time, without prior notice to the Borrowers or any other Loan Party, any such notice being waived by each of the Borrowers (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Each Lender agrees promptly to which it exercised notify the BV Borrower and the Administrative Agent after any such right set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 12.09 are in addition to other rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party constitute security, or shall the proceeds of such assets be available for, payment of the Obligations of any Borrower or any Domestic Subsidiary, it being understood that the Equity Interests of any Foreign Subsidiary that is not a Loan Party do not constitute such an asset.
Appears in 1 contract
Samples: Senior Subordinated Term Loan Agreement (Sensata Technologies B.V.)
Setoff. Regardless of In addition to any Liens granted under the adequacy of Loan Documents and any security for rights now or hereafter granted under applicable law, upon the Obligations, occur rence and during the continuance of any Event of Default, each Lender and any deposits (general or specific, Affiliate of any Lender is hereby authorized by the Borrower at any time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof time to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate maytime, without notice to any Loan Party Person (any such notice being hereby expressly waived by Loan Partieswaived) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured (but not including trust accounts)) and any other liabilities, direct, Indebtedness at any time held or indirect, absolute owing by such Lender or contingent, due any of its Affiliates to or to become due, now existing for the credit or hereafter arising, the account of the Loan Parties Borrower against and on account of the Obligations of the Borrower to such Lender. Each Lender or any of the Lenders agrees its Affiliates, including, but not limited to, all Loans and Letters of Credit and all claims of any nature or description arising out of or in connection with each other Lender that if this Agreement, irrespective of whether or not (i) such Lender shall receive from a Loan Partyhave made any demand hereunder or (ii) the Payment and Disbursement Agent, whether by voluntary payment, exercise at the request or with the consent of the right Requisite Lenders, shall have declared the principal of setoffand interest on the Loans and other amounts due hereunder to be due and payable as permitted by Article XI and even though such Obligations may be contingent or unmatured. Each Lender agrees that it shall not, or otherwisewithout the express consent of the Requisite Lenders, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lendersthat it shall, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recoveryit is lawfully entitled to do so, but without interest. In upon the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit request of the Agent and the Requisite Lenders, and (b) exercise its setoff rights hereunder against any accounts of the Defaulting Borrower now or hereafter maintained with such Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffor any Affiliate.
Appears in 1 contract
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, subject to the exclusive right of the Administrative Agent and the Collateral Agent to exercise remedies under Section 9.11, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to Parent Borrower or any other Loan Party, any such notice being waived by Parent Borrower (on its own behalf and on behalf of each Loan Party and the Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of currencybut excluding any payroll, maturitytrust, or Tax withholding accounts) at any time held by, and other Indebtedness (in any currency) at any time owing by, such Lender and its Affiliates or such L/C Issuer and its Affiliates, as the branch where such deposits are held) case may be, to or other sums credited by for the credit or due from any Lender or any Affiliate thereof to the account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Loan Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary of a U.S. Subsidiary or a U.S. Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify Parent Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of setoff.such setoff and application. The rights of the Administrative Agent, each 232 #96352060v15 #96352060v15
Appears in 1 contract
Samples: Second Libor Transition Amendment (Primo Water Corp /CN/)
Setoff. Regardless (a) In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness; provided that any recovery by any Lender or its Affiliates pursuant to which it exercised its setoff rights under this Section 10.09 is subject to the provisions of Section 8.04. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such right set off and application made by such Lender; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER OR THE ADMINISTRATIVE AGENT SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED BANKS OR, TO THE EXTENT REQUIRED BY SECTION 10.01 OF THIS AGREEMENT, ALL OF THE BANKS, OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY, OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE COLLATERAL DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR THE ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.
Appears in 1 contract
Samples: Restructuring Support Agreement (Station Casinos Inc)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Syndication Party and the Letter of Credit Bank, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Syndication Party, the Letter of currency, maturityCredit Bank, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of AgentAffiliate, be applied to or set off for the credit or the account of Borrower against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of Borrower now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Syndication Party, the Letter of Credit Bank or their respective Affiliates, irrespective of whether by voluntary paymentor not such Syndication Party, exercise the Letter of Credit Bank or Affiliate shall have made any demand under this Credit Agreement or any other Loan Document and although such obligations of Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Syndication Party or the right Letter of setoffCredit Bank different from the branch, office or otherwise, and shall retain and apply to the payment of the Note Affiliate holding such deposit or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Syndication Party shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 15.30 and, pending such payment, shall be segregated by such Defaulting Lender Syndication Party from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, the Letter of Credit Bank, and the LendersSyndication Party, and (by) the Defaulting Lender Syndication Party shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations Bank Debt owing to such Defaulting Lender Syndication Party as to which it exercised such right of setoff. The rights of each Syndication Party, the Letter of Credit Bank and their respective Affiliates under this Section 15.36 are in addition to other rights and remedies (including other rights of setoff) that such Syndication Party, the Letter of Credit Bank or their respective Affiliates may have. Each Syndication Party and the Letter of Credit Bank agrees to notify Borrower 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.
Appears in 1 contract
Samples: Credit Agreement (CHS Inc)
Setoff. Regardless In addition to any Liens granted under any of the adequacy Loan Documents and any rights now or hereafter available under Applicable Law, Agent and each Lender (and each of their respective Affiliates) is hereby authorized by Borrowers at any security for the Obligations, during the continuance of any time that an Event of DefaultDefault exists, without notice to Borrowers or any deposits other Person (any such notice being hereby expressly waived), to set off and to appropriate and apply any and all deposits, general or specific, special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts)) and any other Debt at any time held or demand, provisional or final, regardless of currency, maturity, or the branch where owing by such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof of their Affiliates to or for the credit or the account of any Borrower against and on account of the Obligations of Borrowers arising under the Loan Parties Documents to Agent, such Lender or any of their Affiliates, including all Loans and LC Outstandings and all claims of any securities nature or other property description arising out of or in connection with this Agreement, irrespective of whether or not (i) Agent or such Lender shall have made any demand hereunder, (ii) Agent, at the request or with the consent of the Loan Parties in Required Lenders, shall have declared the possession principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by this Agreement and even though such Obligations may be contingent or unmatured or (iii) the Collateral for the Obligations is adequate. Notwithstanding the foregoing, each of Agent and Lenders agree with each other that it shall not, without the express consent of the Required Lenders exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with Agent, such Lender or any Affiliate mayof any of them, but no Borrower shall have any claim or cause of action against Agent or any Lender for any setoff made without notice to any Loan Party (the consent of the Required Lenders and the validity of any such notice being expressly waived setoff shall not be impaired by Loan Partiesthe absence of such consent. If any party (or its Affiliate) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of exercises the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenderssetoff provided for hereunder, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements party shall be rescinded obligated to share any such setoff in the manner and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated required by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffSection 12.5.
Appears in 1 contract
Samples: Loan and Security Agreement (Tropical Sportswear International Corp)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Syndication Party and the Letter of Credit Bank, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Syndication Party, the Letter of currency, maturityCredit Bank, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of AgentAffiliate, be applied to or set off for the credit or the account of Borrower against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of Borrower now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Syndication Party, the Letter of Credit Bank or their respective Affiliates, irrespective of whether by voluntary paymentor not such Syndication Party, exercise the Letter of Credit Bank or Affiliate shall have made any demand under this Credit Agreement or any other Loan Document and although such obligations of Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Syndication Party or the right Letter of setoffCredit Bank different from the branch, office or otherwise, and shall retain and apply to the payment of the Note Affiliate holding such deposit or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Syndication Party shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 15.30 and, pending such payment, shall be segregated by such Defaulting Lender Syndication Party from its other funds and deemed held in trust for the benefit of the Agent Administrative Agent, the Letter of Credit Bank, and the LendersSyndication Party, and (by) the Defaulting Lender Syndication Party shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations Bank Debt owing to such Defaulting Lender Syndication Party as to which it exercised such right of setoff. The rights of each Syndication Party, the Letter of Credit Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Syndication Party, the Letter of Credit Bank or their respective Affiliates may have. Each Syndication Party and the Letter of Credit Bank agrees to notify Borrower 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.
Appears in 1 contract
Samples: Credit Agreement (CHS Inc)
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault or Prepayment Trigger Event shall have occurred and be continuing, each Syndication Party and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency) at any time held, maturityand other obligations (in whatever currency) at any time owing, by such Syndication Party or any such Affiliate, to or for the credit or the branch where such deposits are held) or other sums credited by or due from account of any Lender or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off Obligor against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, of the obligations of any Obligor now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each Syndication Party or its Affiliates, irrespective of whether or not such Syndication Party or Affiliate shall have made any demand under this Credit Agreement or any other Loan Document and although such obligations of such Obligor may be contingent or unmatured or are owed to a branch, office or Affiliate of such Syndication Party different from the Lenders agrees with each other Lender that if branch, office or Affiliate holding such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, deposit or otherwise, and shall retain and apply to the payment of the Note or Notes held by obligated on such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreementindebtedness; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In in the event that any Defaulting Lender Syndication Party shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 15.29 and, pending such payment, shall be segregated by such Defaulting Lender Syndication Party from its other funds and deemed held in trust for the benefit of the Administrative Agent and the LendersSyndication Party, and (by) the Defaulting Lender Syndication Party shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations Bank Debt owing to such Defaulting Lender Syndication Party as to which it 87 exercised such right of setoff. The rights of each Syndication Party and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Syndication Party or its Affiliates may have. Each Syndication Party agrees to notify the relevant Obligor 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.
Appears in 1 contract
Samples: Pre Export Credit Agreement
Setoff. Regardless of the adequacy of If any security for the Obligations, during the continuance of any Event of Default, any deposits (general or specific, time or demand, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof Buyer Indemnitee is entitled to the Loan Parties and any securities or other property of the Loan Parties indemnification in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but accordance with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any this Article 9 in an amount in excess of its ratable portion the then-remaining Indemnification Escrow Amount available for distribution, then Buyer shall be required to recover any such amounts due from the Seller Parties under this Agreement by setting off such amounts first solely against the Promissory Note, and then the Consulting Agreement however without prejudice to any other legal remedies Buyer may have under the Agreement. Buyer shall provide notice of the payments received exercise of such right of set off to the Seller Parties. The exercise of such right of set off by Bxxxx will not constitute a breach of this Agreement. Neither the exercise nor the failure to exercise such right of set off will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it.
11. Buyer shall retain the brand for the waste hauling business as Standard Waste Services in the Metro Detroit market after the closing.
12. This Amendment and the Agreement (including the Disclosure Schedules and the Exhibits attached hereto, which are deemed for all purposes to be part of this Agreement), the other documents delivered pursuant to this Amendment, the Agreement, and the Confidentiality Agreement, contain all of the Lenders with respect terms, conditions and representations and warranties agreed upon or made by the Parties relating to the Notes held subject matter of this Agreement and the businesses and operations of the Company and supersede all prior and contemporaneous agreements, negotiations, correspondence, undertakings and communications of the Parties or their respective Representatives, whether oral or written, respecting such subject matter. Upon the Closing, the Confidentiality Agreement shall hereby automatically terminate without any further action by the Parties and shall be of no further force or effect.
13. This Amendment may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the Lenderssame agreement. Counterparts may be delivered via facsimile, such Lender will make such disposition and arrangements electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., wxx.xxxxxxxx.xxx) or other Lenders transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14. This Amendment and any claim or controversy hereunder shall be governed by and construed in accordance with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect the Laws of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part State of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored Michigan without giving effect to the extent principles of such recovery, but without interestconflict of laws thereof.
15. The Parties have participated jointly in the negotiation and drafting of this Amendment. In the event that any Defaulting Lender shall exercise any such right of setoffan ambiguity or question of intent or interpretation arises, (a) all amounts so set off this Amendment shall be paid over immediately to construed as if drafted jointly by the Agent for further application in accordance with Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoffAmendment.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Titan Environmental Solutions Inc.)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of currencyand other Indebtedness at any time owing by, maturity, such Lender and its Affiliates to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and their Subsidiaries against any securities and all Obligations owing to such Lender and its Affiliates hereunder or under any other property Loan Document, now or hereafter existing, irrespective of the Loan Parties in the possession of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any Affiliate mayother Loan Document and although such Obligations may be contingent or unmatured. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set off and application made by such Lender; PROVIDED, without that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent and each Lender under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent and such Lender may have. Notwithstanding anything herein or in any other Loan Document to the contrary, in no event shall the assets of any Foreign Subsidiary that is not a Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the constitute collateral security for payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion Obligations of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all Borrower or any part of such excess payment is thereafter recovered from such LenderDomestic Subsidiary, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event it being understood that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions Equity Interests of this Agreement and, pending any Foreign Subsidiary that is not a Loan Party do not constitute such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, an asset and (b) the Defaulting Lender provisions hereof shall provide promptly not limit, reduce or otherwise diminish in any respect the Borrower's obligations to the Agent a statement describing in reasonable detail the Obligations owing make any mandatory prepayment pursuant to such Defaulting Lender as to which it exercised such right of setoffSection 2.05(b)(ii).
Appears in 1 contract
Samples: Credit Agreement (Uici)
Setoff. Regardless In addition to any rights and remedies of the adequacy of any security for Lenders provided by Law, upon the Obligations, occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each L/C Issuer and its Affiliates is authorized at any time and from time to time, without prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final) at any time held by, regardless of and other Indebtedness (in any currency) at any time owing by, maturitysuch Lender and its Affiliates or such L/C Issuer and its Affiliates, as the case may be, to or for the credit or the branch where such deposits are held) or other sums credited by or due from any Lender or any Affiliate thereof to account of the respective Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off their Subsidiaries against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Loan Parties to such Lender. Each of the Lenders agrees with each other Lender that if such Lender shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by this Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. In the event that any Defaulting Lender shall exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of this Agreement 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 Agent and the Lenders, and (b) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender and its Affiliates or such L/C Issuer and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no L/C Issuer or its Affiliates shall have a right to set off and apply any deposits held -406- #94164975v6 Exhibit 10.14 or other Indebtedness owing by such Lender or its Affiliates or such L/C Issuer or its Affiliates, as the case may be, to which it exercised or for the -407- #94164975v6 Exhibit 10.14 credit or the account of any Subsidiary of a Loan Party that is a Foreign Subsidiary or a Domestic Foreign Holding Company. Each Lender and L/C Issuer agrees promptly to notify the Borrower and the Administrative Agent after any such right set off and application made by such Lender or L/C Issuer, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each L/C Issuer under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and such L/C Issuer may have.
Appears in 1 contract
Setoff. Regardless of the adequacy of any security for the Obligations, during the continuance of any If an Event of DefaultDefault shall have occurred and be continuing, each Credit Party and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or specificspecial, time or demand, provisional or final, regardless of in whatever currency, maturity, ) at any time held and other obligations (in whatever currency) at any time owing by Credit Party or any such Affiliate to or for the credit or the branch where such deposits are held) or other sums credited by or due from account of any Lender Borrower or any Affiliate thereof to the Loan Parties and any securities or other property of the Loan Parties in the possession of such Lender or any Affiliate may, without notice to any Loan Party (any such notice being expressly waived by Loan Parties) but with the prior written approval of Agent, be applied to or set off its Subsidiaries against the payment of Obligations and any and all other liabilities, direct, of the obligations of such Borrower or indirect, absolute or contingent, due or to become due, such Subsidiary now existing or hereafter arising, of the existing under this Credit Agreement or any other Loan Parties Document to such Lender. Each Credit Party or Affiliate, irrespective of the Lenders agrees with each other Lender that if whether or not such Lender Credit Party shall receive from a Loan Party, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Note or Notes held by such Lender (but excluding the Swing Loan Note) have made any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it its proportionate payment as contemplated by demand under this Agreement; provided that if all Credit Agreement or any part other Loan Document and although such obligations of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall Borrower or Subsidiary may be rescinded and the amount restored contingent or unmatured or are owed to the extent a branch or office of such recoveryCredit Party different from the branch or office holding such deposit or obligated on such indebtedness, but without interest. In provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (ax) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement Section 2.9 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (by) 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. The rights of each Credit Party and its Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Credit Party and its Affiliates may have. Each Credit Party 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.
Appears in 1 contract
