Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, such Lenders 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 Lenders 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 Credit 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or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 4 contracts
Samples: Subordination Agreement (BTHC VII Inc), Intercreditor and Lien Subordination Agreement (Whitehall Jewellers Inc), Subordination Agreement (Whitehall Jewelers Holdings, Inc.)
Setoff. Regardless of the adequacy of any collateralWithout demand or notice, 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 at which such deposits are held, but specifically excluding tenant security deposits, other fiduciary accounts and other segregated escrow accounts required to be maintained by the Borrower for the benefit of any third party) or other sums credited by or due from any of the Lenders to the Borrower and or its Subsidiaries or any securities or other property of the Borrower or its Subsidiaries in the possession of any the Administrative Agent or a Lender may be applied to or set off by such Lenders 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 Borrower to such LenderObligations. Each of the Lenders agrees with each other Lenders Lender that (a) if pursuant to any agreement between such Lender and the Borrower (other than this Agreement or any other Loan Document), an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by with respect to the Notes held by such LenderObligations, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersObligations, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or its Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders Obligations by proceedings against the Borrower or its Subsidiaries 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 or Notes held by, or Reimbursement Obligations owed to, such Lenders Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by by, and Reimbursement Obligations owed to, all of the Lenders, such Lenders 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 otherwise, as shall result in each Lender receiving in respect of the Notes held by it 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, no Lender shall exercise a right of setoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower or its Subsidiaries; and provided further, if a Lender receives any amount in connection with the enforcement by such Lender against any particular assets held as collateral for Secured Indebtedness existing on the date hereof and unrelated to the Obligations which is owing to such Lender by the Borrower, such Lender shall not be required to ratably apply such amount to the Obligations.
Appears in 4 contracts
Samples: Revolving Credit and Term Loan Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P), Revolving Credit Agreement (Mack Cali Realty L P)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower, Parent and each of the other Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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. Lender agrees to notify the Borrower promptly after any such set off and application; provided that the failure to give such notice shall not give the Borrower any cause of action or right to damages or affect the validity of such set off and application.
Appears in 4 contracts
Samples: Credit Agreement (Gladstone Commercial Corp), Credit Agreement (Gladstone Commercial Corp), Credit Agreement (Gladstone Commercial Corp)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 4 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders against the payment of Obligations or the Hedge 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 3 contracts
Samples: Credit Agreement (QualityTech, LP), Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders against the payment of Obligations or the Hedge 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Without limiting the foregoing, each of the Bid Loan Lenders agrees with each other Bid Loan Lender holding a Bid Loan made as part of the same Bid Loan Borrowing that if such Bid Loan Lender shall receive from Borrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Bid Loan Note held by such Bid Loan Lender any amount in excess of its ratable portion of the payments received by all of the Bid Loan Lenders with respect to the Bid Loan Notes held by all of such Bid Loan Lenders relating to such Bid Loan Borrowing, such Bid Loan Lender will make such disposition and arrangements with the other Bid Loan Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bid Loan Lender receiving in respect of such Bid Loan Notes held by it its proportionate payment as contemplated by this Agreement. 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 3 contracts
Samples: Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.), Credit Agreement (QTS Realty Trust, Inc.)
Setoff. Regardless of the adequacy of any collateral, during 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 of where such deposits are held) or other sums credited by or due from any of the Lenders or any Affiliated Lender to the Borrower Borrower, the Company or any of the other Guarantors and any securities or other property of the Borrower Borrower, the Company or any of the other Guarantors in the possession of any such Lender or Affiliated Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrower, the Company or any of the other Guarantors to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, the Company or any of the other Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower Borrower, the Company or any of the other Guarantors 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 3 contracts
Samples: Revolving Credit and Guaranty Agreement (Sl Green Realty Corp), Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp), Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Setoff. Regardless of the adequacy of any collateral, during 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 of the Lenders Lender or any Affiliate thereof to the Borrower and any securities or other property of the Borrower in the possession of such Lender or any Lender may Affiliate may, without notice to Borrower (any such notice being expressly waived by Borrower) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of § 14.16 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 (y) 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 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.
Appears in 3 contracts
Samples: Term Loan Agreement (CoreSite Realty Corp), Term Loan Agreement (CoreSite Realty Corp), Term Loan Agreement (CoreSite Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of DefaultDefault under §12.1(a) or §12.1(b), including in connection with any acceleration of the Obligations, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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) such 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 3 contracts
Samples: Senior Secured Credit Agreement (Healthcare Trust, Inc.), Senior Secured Credit Agreement (Healthcare Trust, Inc.), Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust II, Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any such Lender may WITH THE PRIOR APPROVAL OF THE AGENT be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, no Lender shall exercise a right of setoff if such exercise would limit or prevent the exercise of any other remedy, right to Collateral or other recourse against the Borrower.
Appears in 3 contracts
Samples: Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of DefaultDefault under Section 12.1(a) or Section 12.1(b), including in connection with any acceleration of the Obligations, 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 of Lender to Borrowers or the Lenders to the Borrower Guarantors and any securities or other property of Borrowers or the Borrower Guarantors in the possession of such Lender may, without notice to any Lender may Borrower or any Guarantor (any such notice being expressly waived by each Borrower and each Guarantor) but with the prior written approval of Administrative Agent, be applied to or set off by such Lenders 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 Borrowers or the Borrower Guarantors to such Lender. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from Borrowers or the BorrowerGuarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 Administrative 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 Administrative Agent and the Lenders, and (b) such Defaulting Lender shall provide promptly to 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 3 contracts
Samples: Senior Secured Credit Agreement (American Healthcare REIT, Inc.), Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.), Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Setoff. Regardless of the adequacy of In addition to any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from Liens granted under any of the Lenders to the Borrower Credit Documents and any securities rights now or hereafter available under Applicable Law, each Agent and each Lender (and, each of their respective Affiliates) is hereby authorized by Borrowers at any time that an Event of Default exists, without notice to Borrowers or any other property of the Borrower in the possession of Person (any Lender may be applied such notice being hereby expressly waived), to or set off by such Lenders against the payment of Obligations and to appropriate and apply any and all deposits, general or special (including Debt evidenced by certificates of deposit whether matured or unmatured (but not including trust accounts, tax accounts, employee benefit or payroll accounts)) and any other liabilities, direct, Debt at any time held or indirect, absolute owing by such Lender or contingent, due any of their Affiliates to or to become due, now existing for the credit or hereafter arising, the account of any Borrower against and on account of the Borrower Obligations of Borrowers arising under the Credit Documents to such Lender. Each Agent, such Lender or any of their Affiliates, including all Loans and L/C Obligations and all claims of any nature or description arising out of or in connection with this Agreement, irrespective of whether or not (i) such Agent or such Lender shall have made any demand hereunder, (ii) Administrative 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 Agents and Lenders agrees agree with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness it shall not, without the express consent of the Borrower to such Required Lenders, other than Indebtedness evidenced exercise its setoff rights hereunder against any accounts of any Borrower now or hereafter maintained with such Agent, such Lender or any Affiliate of any of them, but no Borrower shall have any claim or cause of action against any Agent or any Lender for any setoff made without the consent of the Required Lenders and the validity of any such setoff shall not be impaired by the Notes held by absence of such Lenderconsent. If any party (or its Affiliate) exercises the right of setoff provided for hereunder, such amount party shall be applied ratably obligated to share any such other Indebtedness setoff in the manner and to the Indebtedness evidenced extent required by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, such Lenders 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 Lenders 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 Credit 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 interestSection 13.5.
Appears in 3 contracts
Samples: Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Inc.), Credit Agreement (J.M. Tull Metals Company, Inc.)
Setoff. Regardless of the adequacy of any collateral, during 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 of the Lenders Lender or any Affiliate thereof to the Borrower any Credit Party and any securities or other property of the Borrower such parties in the possession of such Lender or any Lender may Affiliate may, without notice to any Credit Party (any such notice being expressly waived) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower to such LenderCredit Parties. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrowera Credit Party, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 3 contracts
Samples: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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: Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.), Term Loan Agreement (Carter Validus Mission Critical REIT, Inc.)
Setoff. Regardless In addition to any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Default or Event of Default, the Agent and each of the Lenders and each subsequent holder of any of the Notes is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower, to any Subsidiary of 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 special, including, but not limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other sums credited Indebtedness at any time held or owing by the Agent or due from the Lenders or that subsequent holder to or for the credit or the account of the Borrower, whether or not matured, against and on account of the obligations and liabilities of the Borrower to the Agent or the Lenders or that subsequent holder under the Credit Documents, including, but not limited to, all claims of any nature or description arising out of or connected with the Credit Documents, irrespective of whether or not (i) the Agent or any of the Lenders to or that subsequent holder shall have made any demand hereunder or (ii) the Borrower principal of or the interest on the Loans, the Notes and other amounts due hereunder shall have become due and payable hereunder and although said obligations and liabilities, or any securities or other property of the Borrower in the possession of any Lender them, may be applied to contingent or set off by such Lenders against the payment of Obligations and any and all other liabilities, direct, unmatured. The Agent or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, as applicable, shall promptly give the Borrower notice of any such amount setoff, provided that any failure to give such notice shall not impact the validity of any such setoff or give rise to any liability of the Agent or any Lender as a result of any such failure. The Agent and the Lenders agree, if there shall be applied ratably any other Lenders pursuant to such other Indebtedness Section 10.10(b), that if a Lender receives and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrowerretains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment on any of the Note Loans or Notes held by, such Lenders any amount L/C Obligations in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessamount of the Loans or L/C Obligations, either or participations therein, held by way of distribution, pro tanto assignment of claims, subrogation such Lender (or otherwise interest therein) as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the portion of such excess payment so recovered, with interest pro rata, to the extent of such recovery, but without interestthe purchasing Lender is required to pay interest on the amount restored.
Appears in 2 contracts
Samples: Credit Agreement (Quanta Services Inc), Secured Credit Agreement (Quanta Services Inc)
Setoff. Regardless of the adequacy of any collateral, during 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to Borrower, the Borrower Company or any of the other Guarantors and any securities or other property of Borrower, the Borrower Company or any of the other Guarantors in the possession of any such Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of Borrower, the Borrower Company or any of the other Guarantors to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from Borrower, the BorrowerCompany or any of the other Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against Borrower, the Borrower Company or any of the other Guarantors 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Sl Green Realty Corp), Credit and Guaranty Agreement (Sl Green Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents; provided that notwithstanding the foregoing or anything in the Loan Documents to the contrary, such right of setoff as to Borrower and REIT shall not apply to any account of Borrower or REIT that is not an account tied to a specific property or for the collection of rents from a specific property. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 (Tier Reit Inc), Credit Agreement (Behringer Harvard Reit I Inc)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of the Agent and the Required Lenders, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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: Term Loan Agreement (Mid-America Apartments, L.P.), Term Loan Agreement (Mid-America Apartments, L.P.)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of where such deposits are held) or other sums credited by or due from Agent or any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of Agent or any Lender may be applied to or set off by such Lenders 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 Borrower Borrower, as applicable, to such Lender. Upon the occurrence and during the continuance of an Event Default, any Lender, including Agent, may, but shall not be obligated to freeze withdrawals from any account of Borrower held by such Lender. Each of the Lenders Lender agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Samples: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Setoff. Regardless of the adequacy of any collateralWithout demand or notice, 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 at which such deposits are held, but specifically excluding tenant security deposits, other fiduciary accounts and other segregated escrow accounts required to be maintained by the Borrower for the benefit of any third party) or other sums credited by or due from any of the Lenders to the Borrower and or its Subsidiaries or any securities or other property of the Borrower or its Subsidiaries in the possession of any the Administrative Agent or a Lender may be applied to or set off by such Lenders 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 Borrower to such LenderObligations. Each of the Lenders agrees with each other Lenders Lender that (a) if pursuant to any agreement between such Lender and the Borrower (other than this Agreement or any other Loan Document), an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by with respect to the Notes held by such LenderObligations, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersObligations, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or its Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders Obligations by proceedings against the Borrower or its Subsidiaries 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 or Notes held by, by such Lenders Lender 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 Lenders 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 otherwise, as shall result in each Lender receiving in respect of the Notes held by 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, no Lender shall exercise a right of setoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower or its Subsidiaries; and provided further, if a Lender receives any amount in connection with the enforcement by such Lender against any particular assets held as collateral for Secured Indebtedness existing on the date hereof and unrelated to the Obligations which is owing to such Lender by the Borrower, such Lender shall not be required to ratably apply such amount to the Obligations.
Appears in 2 contracts
Samples: Term Loan Agreement (Mack Cali Realty L P), Term Loan Agreement (Mack Cali Realty Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Samples: Credit Agreement (Behringer Harvard Reit I Inc), Credit Agreement (Behringer Harvard Reit I Inc)
Setoff. Regardless In addition to any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Event of Default, each Lender and each subsequent holder of any deposits Note is hereby authorized by the Borrower at any time or other sums credited by or due from any of the Lenders time to time, without notice to the Borrower and or any securities or other property of the Borrower in the possession of Person, any Lender may be applied such notice being hereby expressly waived, to or set off by such Lenders 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 in whatever currency denominated) and any other liabilitiesIndebtedness at any time owing by that Lender or that subsequent holder to or for the credit or the account of the Borrower, directwhether or not matured, or indirect, absolute or contingent, against and on account of the due or to become due, now existing or hereafter arising, and unpaid obligations and liabilities of the Borrower to such Lenderthat Lender or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender or that subsequent holder shall have made any demand hereunder. Each Lender shall promptly give notice to the Borrower of any action taken by it under this Section 10.6, provided that any failure of such Lender to give such notice to the Lenders Borrower shall not affect the validity of such setoff. Each Lender agrees with each other Lenders Lender a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the BorrowerLender receives and retains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment in respect of the Note or Notes held by, such Lenders any amount Term Loans in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excess, either amount of the Term Loans and participations therein held by way of distribution, pro tanto assignment of claims, subrogation or otherwise each such other Lender as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest.
Appears in 2 contracts
Samples: Term Credit Agreement (Transocean Inc), Term Credit Agreement (Transocean Inc)
Setoff. Regardless (1) In addition to any rights now or hereafter granted under Applicable Law and not by way of the adequacy limitation of any collateralsuch 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 Borrowers at any time or from time to time, without notice to any 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 special, including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other sums credited indebtedness at any time held or owing by any Lender or due from any Affiliate of any Lender or any participant to or for the credit or the account of any Borrower against and on account of the Secured Obligations irrespective or whether or not the Agent or such Lender shall have made any demand under this Agreement or any of the Loan Documents, or the Agent or such Lender shall have declared any or all of the Secured Obligations to be due and payable as permitted by Section 12.2 and although such Secured Obligations shall be contingent or unmatured.
(2) If any Lender shall obtain payment of any principal of or interest on any Loan made by it or on any other Secured Obligation owing to such Lender through the exercise of any right of set-off, banker's lien or counterclaim or similar right or otherwise, it shall promptly so notify the Agent (which shall promptly notify the other Lenders). If, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on any Revolving Credit Loan to such Lender than the percentage received by any other Lender or Lenders in respect of the principal of or interest on any Revolving Credit Loan owing to such other Lender or Lenders, it shall, at the request of such other Lender or Lenders, promptly purchase from such other Lender or Lenders participations in (or, if and to the Borrower extent specified by such first Lender, direct interests in) the principal of or interest on Revolving Credit Loans owing to such other Lenders in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that such first Lender and such other Lender or Lenders (such first Lender and such other Lender or Lenders being collectively referred to as the "Sharing Lenders") shall share the benefit of such excess payment (net of any securities expenses which may be incurred by such first Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid amounts of such obligations owing to each of the Sharing Lenders. To such end all the Sharing Lenders shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(3) The Borrowers agree that any Lender so purchasing a participation in obligations hereunder of the Borrowers to another Lender or other property of the Borrower in the possession of any Lender Lenders may be applied to or set off by such Lenders against the payment of Obligations and exercise any and all other liabilitiesrights of set-off, directbankers' lien, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership counterclaim or similar proceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by, such Lenders 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 Lenders will make such disposition and arrangements with the other Lenders rights with respect to such excessparticipation as fully as if such first Lender were a direct holder of obligations of the Borrowers in the amount of such participation. Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, either by way and retain the benefits of distributionexercising, pro tanto assignment any such right with respect to any other indebtedness or obligation of claimsthe Borrowers.
(4) If under any applicable bankruptcy, subrogation insolvency or otherwise as other similar law, any Lender receives a secured claim in lieu of a set- off to which Section 15.4(b) hereof applies, such Lender shall result in each Lender receiving to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the Notes held by it, its proportionate payment as contemplated by rights of the Lenders entitled under this Credit Agreement; provided that if all or Section 15.4 to share in the benefits of any part of recovery on 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 interestsecured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Trism Inc /De/), Loan and Security Agreement (Trism Inc /De/)
Setoff. Regardless of the adequacy of any collateralsecurity 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 of the Lenders Lender or any Affiliate thereof to the Borrower Credit Parties and any securities or other property of the Borrower Credit Parties in the possession of such Lender or any Lender may Affiliate may, without notice to any Credit Party (any such notice being expressly waived by Credit Parties) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower Credit Parties to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 (City Office REIT, Inc.), Credit Agreement (City Office REIT, Inc.)
Setoff. Regardless In addition to any rights of the adequacy of any collateral, during the continuance of any Event of Default, any deposits setoff or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any Lender similar rights that Buyer may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower have at common law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply notwithstanding anything to the payment contrary herein, Buyer shall have the right, at its sole election, to withhold and deduct from any Earnout Payments that would be otherwise payable hereunder any sum that (i) is owed to Buyer or any Buyer Indemnitee Party under this Article VII or (ii) Buyer reasonably and in good faith believes may be owed to it or any Buyer Indemnitee under this Article VII. Buyer shall exercise the foregoing right of setoff by delivering a written notice to Seller that shall contain the Note or Notes held byfollowing:
(1) the basis for why the Buyer believes it is entitled to setoff, (2) the alleged amount owed (the “Setoff Amount”) along with a calculation showing the basis for such Lenders any amount Setoff Amount, and (3) reasonable documentation supporting the Setoff Amount. For clarity, Buyer shall not be entitled to setoff under the terms hereof unless such Setoff Amount is in excess of its ratable portion of the payments received threshold set forth in Section 7.06(b). If the amount relating to claims for indemnification made by all of Buyer that is setoff against an Earnout Payment is finally determined, and no longer subject to appeal, not to be owed to Buyer or the Lenders with respect Buyer Indemnitee pursuant to the Notes held by all of terms hereof or is less than the LendersSetoff Amount, such Lenders will make excess Setoff Amount plus interest in the amount of twelve percent (12%) per annum accruing from the date such disposition amount should have been paid to Seller by Buyer shall be promptly funded, and arrangements in any event within twenty (20) business days, by Buyer to Seller along with the other Lenders with respect to such excess, either by way Seller’s actual attorneys’ fees and costs arising out 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 Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered resulting from such Lender, such disposition and arrangements shall be rescinded and offset if it is determined that the offset amount restored to the extent of such recovery, but without interestwas not owed entirely.
Appears in 2 contracts
Samples: Share Purchase Agreement (Staffing 360 Solutions, Inc.), Share Purchase Agreement (Staffing 360 Solutions, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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: Term Loan Agreement (Mid America Apartment Communities Inc), Term Loan Agreement (Mid America Apartment Communities Inc)
Setoff. Regardless Without limiting any other right of Lenders, upon the adequacy of any collateral, occurrence and during the continuance of any an Event of Default, the Agent or any deposits Lender, at its sole election, may apply to the Indebtedness any and all property of any Borrower held by such Person in any capacity, and may exercise a right of setoff against any monies owed to such Person by any Borrower. If any Lender shall, by exercising any right of setoff or other sums credited by counterclaim or due from otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans, Revolving Loans, or participations in Letter of Credit Outstandings or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans of other Lenders to the Borrower extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans, Revolving Loans and participations in Letter of Credit Outstandings and Swingline Loans; provided that (i) if any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders against the payment of Obligations and any participations are purchased and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, such Lenders 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 Lenderspayment giving rise thereto is recovered, such Lenders 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 Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements participations shall be rescinded and the amount purchase price restored to the extent of such recovery, but without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letter of Credit Outstandings and Swingline Loans to any assignee or participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (Air Methods Corp), Revolving Credit and Term Loan Agreement (Air Methods Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender or any Affiliate thereof to the Parent Borrower or any Subsidiary Credit Party and any securities or other property of the Borrower such parties in the possession of such Lender or any Lender may Affiliate may, without notice to any Borrower or any Subsidiary Credit Party (any such notice being expressly waived by Borrowers) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower Borrowers or any Subsidiary Credit Party to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrowera Borrower or any Subsidiary Credit Party, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 (Bluerock Residential Growth REIT, Inc.), Credit Agreement (Bluerock Residential Growth REIT, Inc.)
Setoff. Regardless of the adequacy of any collateralcollateral (if any), 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of any such Lender may be applied to or set off by such Lenders against the payment of Obligations Liabilities and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower Borrowers 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Samples: Loan Agreement (Dynamics Research Corp), Loan Agreement (Dynamics Research Corp)
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to the Borrower or the Guarantors (any Lender may such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or any Guarantor to such LenderLender under the Loan Documents; provided that with respect to Borrower’s commercial banking accounts with Xxxxx Fargo Bank, National Association, Xxxxx Fargo Bank, National Association shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 (STORE CAPITAL Corp), Credit Agreement (STORE CAPITAL Corp)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender or any Affiliate thereof to the Parent Borrower or any Subsidiary Credit Party and any securities or other property of the Borrower such parties in the possession of such Lender or any Lender may Affiliate may, without notice to any Borrower or any Subsidiary Credit Party (any such notice being expressly waived by Borrowers) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower Borrowers or any Subsidiary Credit Party to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrowera Borrower or any Subsidiary Credit Party, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Samples: Credit Agreement (City Office REIT, Inc.), Credit Agreement (City Office REIT, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 (Mid America Apartment Communities Inc), Credit Agreement (Mid America Apartment Communities Inc)
Setoff. Regardless of the adequacy of any collateralcollateral for the Obligations, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower or any of the other Transaction Parties and any securities or other property of the Borrower and any of the other Transaction Parties in the possession of any Lender such Bank may be applied to or set off by such Lenders Bank 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 Borrower or such other Transaction Party to such LenderBank. Each of the Lenders Banks agrees with each other Lenders Bank that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower or such other Transaction Party to such LendersBank, other than Indebtedness evidenced by the Notes held by such LenderBank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersBank or constituting Reimbursement Obligations owed to such Bank, and (bii) if such Lenders Bank shall receive from the BorrowerBorrower or such other Transaction Party, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lenders Bank by proceedings against the Borrower or such other Transaction Party 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 or Notes held by, or Reimbursement Obligations owed to, such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by eitherby way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by it or Reimbursement obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Charlotte Russe Holding Inc), Revolving Credit Agreement (Charlotte Russe Holding Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders Banks agrees with each other Lenders Bank that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersBank, other than Indebtedness evidenced by the Revolving Credit Notes held by such LenderBank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such LendersBank or constituting Reimbursement Obligations owed to such Bank, and (bii) if such Lenders Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, such Lenders Bank by proceedings against the Borrower 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 Revolving Credit Note or Revolving Credit Notes held by, or Reimbursement Obligations owed to, such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Revolving Credit Notes held by by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or --- ----- otherwise as shall result in each Lender Bank receiving in respect of the Revolving Credit Notes held by it 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 -82- from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit Agreement (California Steel Industries Inc)
Setoff. Regardless of the adequacy of any collateral, 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of any such Lender may be applied to or set off by such Lenders against the payment of Obligations Liabilities and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower Borrowers 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless In addition to any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Default or Event of Default, the Agent and each of the Lenders and each subsequent holder of any of the Notes is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower, to any Subsidiary of 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 special, including, but not limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other sums credited Indebtedness at any time held or owing by the Agent or due from the Lenders or that subsequent holder to or for the credit or the account of the Borrower, whether or not matured, against and on account of the obligations and liabilities of the Borrower to the Agent or the Lenders or that subsequent holder under the Credit Documents, including, but not limited to, all claims of any nature or description arising out of or connected with the Credit Documents, irrespective of whether or not (i) the Agent or any of the Lenders to or that subsequent holder shall have made any demand hereunder or (ii) the Borrower principal of or the interest on the Loans, the Notes and other amounts due hereunder shall have become due and payable hereunder and although said obligations and liabilities, or any securities or other property of the Borrower in the possession of any Lender them, may be applied to contingent or set off by such Lenders against the payment of Obligations and any and all other liabilities, direct, unmatured. The Agent or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, as applicable, shall promptly give the Borrower notice of any such amount setoff, provided that any failure to give such notice shall not impact the validity of any such setoff or give rise to any liability of the Agent or any Lender as a result of any such failure. The Agent and the Lenders agree, if there shall be applied ratably any other Lenders pursuant to such other Indebtedness SECTION 10.10(b), that if a Lender receives and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrowerretains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment on any of the Note Loans or Notes held by, such Lenders any amount L/C Obligations in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessamount of the Loans or L/C Obligations, either or participations therein, held by way of distribution, pro tanto assignment of claims, subrogation such Lender (or otherwise interest therein) as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the portion of such excess payment so recovered, with interest pro rata, to the extent of such recovery, but without interestthe purchasing Lender is required to pay interest on the amount restored.
Appears in 1 contract
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to the Borrower or the Guarantors (any Lender may such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or any Guarantor to such LenderLender under the Loan Documents; provided that with respect to Borrower’s commercial banking accounts with Xxxxx Fargo Bank, National Association, Xxxxx Fargo Bank, National Association shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 of the adequacy of any collateralLenders under applicable law, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to the Borrower or the Guarantors (any Lender may such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or any Guarantor to such LenderLender under the Loan Documents; provided that with respect to Xxxxxxxx’s commercial banking accounts with Xxxxx Fargo Bank, National Association, Xxxxx Fargo Bank, National Association shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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: Term Credit Agreement
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Credit Agreement (Pacific Office Properties Trust, Inc.)
Setoff. Regardless If one or more Events of the adequacy of any collateral, during the continuance of any Event of DefaultDefault as defined herein shall occur and be continuing, any deposits or Lender which is owed any obligation hereunder (“Depositary”) shall have the right, in addition to all other sums credited by or due from any of the Lenders rights and remedies available to it, and is hereby authorized, to the Borrower extent permitted by applicable law, at any time and from time to time, without notice to the Company (any securities or other property of such notice being hereby expressly waived by the Borrower in the possession of any Lender may be applied Company), to or set off by such Lenders against the payment of Obligations and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other liabilitiesindebtedness (whether or not then due and payable) at any time owing by the Depositary to or for the credit or the account of the Company, direct, or indirect, absolute or contingent, due or to become due, against any and all of the obligations of the Company now existing or hereafter arisingexisting under this Agreement, irrespective of whether or not the Borrower to Depositary shall have made any demand for satisfaction of such Lenderobligations and although such obligations may be unmatured. Each Depositary 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 the Lenders such setoff and application. The rights of each Depositary under this Section 13.03 are in addition to other rights and remedies (including, without limitation, other rights of setoff) which such Depositary may have hereunder or under any applicable law. Each Depositary agrees with each other Lenders that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to it shall exercise any such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of banker’s lien, setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership counterclaim or similar proceedingsright pursuant hereto, or otherwise, and shall retain and it will apply the proceeds thereof first to the payment of Revolving Credit Loans and LC Disbursements outstanding hereunder and thereafter to the Note payment of Discretionary Loans which may be owing to it and (ii) if it shall through the exercise of a right of banker’s lien, setoff, counterclaim or Notes otherwise obtain payment of a proportion of the Revolving Credit Loans and participations in LC Disbursements held by, such Lenders any amount by it in excess of its ratable portion the proportion of the payments received by all Revolving Credit Loans and participations in LC Disbursements of each of the Lenders with respect other Depositaries being paid simultaneously, it shall be deemed to have simultaneously purchased from each other Depositary a participation in the Notes Revolving Credit Loans and participations in LC Disbursements owed to such other Depositaries so that the amount of unpaid Revolving Credit Loans and participations therein and participations in LC Disbursements held by all Depositaries shall be proportionate to the original principal amount of the Lenders, such Lenders will make such disposition Revolving Credit Loans and arrangements with the other Lenders with respect to such excess, either participations in LC Disbursements held by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result them; and in each Lender receiving in respect case it shall promptly remit to each such Depositary the amount of the Notes held by itparticipation thus deemed to have been purchased. The Company expressly consents to the foregoing arrangements, and in furtherance thereof, agrees that at such time as an Event of Default hereunder has occurred, the Administrative Agent shall provide to each Lender a schedule setting forth the Commitment of each Lender hereunder to permit each Lender to correctly determine the portion which its proportionate payment as contemplated by this Credit Agreement; provided that if Commitment hereunder bears to the aggregate of all Commitments hereunder. If all or any part portion of any such excess payment is thereafter recovered from such Lenderthe Depositary which received the same, such disposition and arrangements the purchase provided for herein shall be deemed to have been rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Credit Agreement (Cox Radio Inc)
Setoff. Regardless In addition to any rights now or hereafter granted ------ under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Default or Event of Default, the Agent and each of the Lenders and each subsequent holder of any of the Notes is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower, to any Subsidiary of 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 special, including, but not limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other sums credited Indebtedness at any time held or owing by the Agent or due from the Lenders or that subsequent holder to or for the credit or the account of the Borrower, whether or not matured, against and on account of the obligations and liabilities of the Borrower to the Agent or the Lenders or that subsequent holder under the Credit Documents, including, but not limited to, all claims of any nature or description arising out of or connected with the Credit Documents, irrespective of whether or not (i) the Agent or any of the Lenders to or that subsequent holder shall have made any demand hereunder or (ii) the Borrower principal of or the interest on the Loans, the Notes and other amounts due hereunder shall have become due and payable hereunder and although said obligations and liabilities, or any securities or other property of the Borrower in the possession of any Lender them, may be applied to contingent or set off by such Lenders against the payment of Obligations and any and all other liabilities, direct, unmatured. The Agent or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, as applicable, shall promptly give the Borrower notice of any such amount setoff, provided that any failure to give such notice shall not impact the validity of any such setoff or give rise to any liability of the Agent or any Lender as a result of any such failure. The Agent and the Lenders agree, if there shall be applied ratably any other Lenders pursuant to such other Indebtedness Section 10.10(b), that if a Lender receives and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrowerretains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment on any of the Note Loans or Notes held by, such Lenders any amount L/C Obligations in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessamount of the Loans or L/C Obligations, either or participations therein, held by way of distribution, pro tanto assignment of claims, subrogation such Lender (or otherwise interest therein) as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the portion of such excess payment so recovered, with interest pro rata, to the extent of such recovery, but without interestthe purchasing Lender is required to pay interest on the amount restored.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower, RPB and each of the other Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender (provided that the foregoing right of setoff may be waived by an individual Lender by separate written agreement with Borrower or a Guarantor). Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Republic Property Trust)
Setoff. Regardless Subject to the Subordination Agreement, regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Lender to the Borrower or any of its Subsidiaries and any securities or other property of the Borrower or any of its Subsidiaries in the possession of any Lender may be applied to or set off by such Lenders Lender 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that Lender that: (ai) if an amount to be set off is to be applied to Indebtedness obligations of the Borrower or any of its Subsidiaries to such LendersLender, other than Indebtedness Obligations evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness Obligations and to the Indebtedness Obligations evidenced by all such Notes held by such Lenders, Lender and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any of its Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross actionor offset, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings proceeding against the Borrower or any of its Subsidiaries 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 or Notes held by, by such Lenders Lender 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 Lenders Lender will make such disposition dispositions and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claimsclaim, subrogation or otherwise as or shall result in each Lender receiving in respect on account of the Note or Notes held by it, it its proportionate payment as contemplated by this Credit Agreement; provided 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.
Appears in 1 contract
Samples: Subordinated Loan Agreement (Cyalume Technologies Holdings, Inc.)
Setoff. Regardless In addition to any rights now or hereafter granted ------ under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Event of Default, each Lender and each subsequent holder of any deposits Note is hereby authorized by the Borrower at any time or other sums credited by or due from any of the Lenders time to time, without notice to the Borrower and or any securities or other property of the Borrower in the possession of Person, any Lender may be applied such notice being hereby expressly waived, to or set off by such Lenders 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 in whatever currency denominated) and any other liabilitiesIndebtedness at any time owing by that Lender or that subsequent holder to or for the credit or the account of the Borrower, directwhether or not matured, or indirect, absolute or contingent, against and on account of the due or to become due, now existing or hereafter arising, and unpaid obligations and liabilities of the Borrower to such Lenderthat Lender or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender or that subsequent holder shall have made any demand hereunder. Each Lender shall promptly give notice to the Borrower of any action taken by it under this Section 10.6, provided that any failure of such Lender to give such notice to the Lenders Borrower shall not affect the validity of such setoff. Each Lender agrees with each other Lenders Lender a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the BorrowerLender receives and retains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment in respect of the Note or Notes held by, such Lenders any amount Loans in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excess, either amount of the Loans and participations therein held by way of distribution, pro tanto assignment of claims, subrogation or otherwise each such other Lender as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest.
Appears in 1 contract
Samples: 364 Day Bridge Credit Agreement (Transocean Sedco Forex Inc)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower Borrowers or the Guarantors and any securities or other property of the Borrower Borrowers or the Guarantors in the possession of such Lender may, without notice to any Lender may Borrower or any Guarantor (any such notice being expressly waived by Borrowers and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders against the payment of Obligations or the Hedge 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 Borrower Borrowers or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrowera Borrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower, Parent and each of the other Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Gladstone Commercial Corp)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any an Event of Default, any deposits or other sums credited by or due from any of the Lenders Bank or Bank Agent to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of any Lender such Bank or Bank Agent may be applied to or set off by such Lenders against the payment of the Obligations or, to the fullest extent permitted by law, the Canadian 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 Borrower Borrowers to such Lenderthe Banks. Each of the Lenders Banks agrees with each other Lenders Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such LendersBank, other than Indebtedness evidenced by the Notes held by such LenderBank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersBank or constituting Reimbursement Obligations owed to such Bank, and (b) if such Lenders Bank shall receive from the BorrowerBorrowers any amount, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lenders Bank by proceedings against the Borrower Borrowers 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 or Notes held by, or Reimbursement Obligations owed to, such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by it or Reimbursement Obligations owed it, its such Bank's proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. 104 -97- Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of any Lender such Bank may be applied to or set off by such Lenders Bank 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 Borrower to such LenderBank. Each of the Lenders Banks agrees with each other Lenders Bank that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersBank, other than Indebtedness evidenced by the Notes held by such LenderBank or constituting Reimbursement Obligations owed to such Bank or constituting such Bank's participating interest in any Swing Line Loans, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersBank or constituting Reimbursement Obligations owed to such Bank or constituting such Bank's participating interest in any Swing Line Loans, and (bii) if such Lenders Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, or the participating interest in any Swing Line Loans of, such Lenders Bank by proceedings against the Borrower 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 or Notes held by, or Reimbursement Obligations owed to, or the participating interest in any Swing Line Loans of, such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by by, and Reimbursement Obligations owed to, or the participating interest in any Swing Line Loans of, all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by itit or Reimbursement Obligations owed it or the participating interest in any Swing Line Loans, 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 LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mercury Air Group Inc)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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) such 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. Notwithstanding the foregoing, each Lender may separately waive in writing any right of setoff against the Obligations it has with respect to any deposit account of Borrower or REIT maintained with such Lender or any other account or property of Borrower or REIT held by such Lender; provided however, that this waiver is not intended, and shall not be deemed, to waive any right of setoff any Lender or Agent has with respect to any account required to be maintained pursuant to this Agreement or any other Loan Document.
Appears in 1 contract
Samples: Credit Agreement (NorthStar Healthcare Income, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender at any Lender time may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Notes Note held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes Note held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes Note held by, by such Lenders Lender by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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 Note held by it, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dollar Tree Stores Inc)
Setoff. Regardless of the adequacy of any collateral, if any, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower such Person to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Without limiting the foregoing, each of the Bid Loan Lenders agrees with each other Bid Loan Lender holding a Bid Loan made as part of the same Bid Loan Borrowing that if such Bid Loan Lender shall receive from Borrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and apply to the payment of the Bid Loan Note held by such Bid Loan Lender any amount in excess of its ratable portion of the payments received by all of the Bid Loan Lenders with respect to the Bid Loan Notes held by all of such Bid Loan Lenders relating to such Bid Loan Borrowing, such Bid Loan Lender will make such disposition and arrangements with the other Bid Loan Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Bid Loan Lender receiving in respect of such Bid Loan Notes held by it its proportionate payment as contemplated by this Agreement. 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 (CyrusOne Inc.)
Setoff. Regardless In addition to any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Event of Default, each Lender and each subsequent holder of any deposits Note is hereby authorized by the Borrower at any time or other sums credited by or due from any of the Lenders time to time, without notice to the Borrower and or any securities or other property of the Borrower in the possession of Person, any Lender may be applied such notice being hereby expressly waived, to or set off by such Lenders 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 in whatever currency denominated) and any other liabilitiesIndebtedness at any time owing by that Lender or that subsequent holder to or for the credit or the account of the Borrower, directwhether or not matured, or indirect, absolute or contingent, against and on account of the due or to become due, now existing or hereafter arising, and unpaid obligations and liabilities of the Borrower to such Lenderthat Lender or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender or that subsequent holder shall have made any demand hereunder. Each Lender shall promptly give notice to the Borrower of any action taken by it under this Section 10.6, provided that any failure of such Lender to give such notice to the Lenders Borrower shall not affect the validity of such setoff. Each Lender agrees with each other Lenders Lender a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the BorrowerLender receives and retains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment on any of the Note or Notes held by, such Lenders any amount Loans in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessamount of the Loans, either or participations therein, held by way of distribution, pro tanto assignment of claims, subrogation or otherwise each such other Lender as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of where such deposits are held) or other sums credited by or due from Agent or any of Lenders to any of the Lenders to the Borrower Loan Parties and any securities or other property of the Borrower Loan Parties in the possession of Agent or any Lender may be applied to or set off by such Lenders 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 Borrower Loan Parties, to such Lender. Each Upon the occurrence and during the continuance of an Event Default, any Lender, including Agent, may, but shall not be obligated to freeze withdrawals from any account of the Lenders Loan Parties held by such Lender. Each Lender agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerLoan Party or Loan Parties, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 6231593.9\0334186 subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Setoff. Regardless of (a) The Administrative Agent and each Lender is hereby authorized at any time and from time to time, upon the adequacy of any collateral, occurrence and during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders without prior notice to the Borrower and any securities or other property of Company, to the Borrower in the possession of any Lender may be applied fullest extent permitted by law, to or set off by such Lenders against the payment of Obligations and apply any and all balances, credits, deposits (general or special time or demand, provisional or final), accounts or monies at any time held and other liabilities, direct, indebtedness at any time owing by the Administrative Agent or indirect, absolute any Lender at any of its branches or contingent, due affiliates to or to become due, now existing or hereafter arising, for the account of the Borrower to such Lender. Each Company against any and all of the Lenders agrees with each other Lenders that (a) if an amount amounts owing by the Company under this Agreement or the Operative Documents to be set off which it is to be applied to Indebtedness a party, whether or not the Administrative Agent or any Lender shall have made any demand hereunder or thereunder. The rights of the Borrower to such LendersAdministrative Agent and each Lender under this Section 9.03 are in addition to, and do not derogate from or impair, other rights and remedies (including, without limitation, other rights of setoff) which any of them may have.
(b) Each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest due with respect to any Tranche A Note or Tranche B Note held by it which is greater than Indebtedness evidenced the proportion received by any other Lender in respect of the Notes aggregate amount of its principal and interest due with respect to any Tranche A Note or Tranche B Note, respectively, held by such other Lender, the Lender receiving such amount proportionately greater payment shall purchase participations in the Tranche A Notes or Tranche B Notes, as the case may be, held by the other Lenders and such other adjustments shall be applied ratably to made as may be required so that all such other Indebtedness and payments with respect to the Indebtedness evidenced by all such Notes held by such Lenders, principal and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, such Lenders any amount in excess of its ratable portion of the payments received by all of the Lenders interest with respect to the Notes held by all the Lenders shall be shared by the Lenders pro rata. The Company agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Note, whether or not acquired pursuant to the Lendersforegoing arrangements, such Lenders will make such disposition may exercise rights of setoff or counterclaims and arrangements with the other Lenders collection rights with respect to such excess, either by way participation as fully as if such holder of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect a participation were a direct creditor of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part Company in 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 of such recovery, but without interestparticipation.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during 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 of the Lenders Lender or any Affiliate thereof to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender or any Lender may Affiliate may, without notice to any Borrower (any such notice being expressly waived by Borrowers) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower Borrowers to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the a Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of § 14.16 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 (y) 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 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.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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) such 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 collateral, 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of any such Lender may be applied to or set off by such Lenders against the payment of Obligations Liabilities and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such LendersLender, other than Indebtedness Liabilities evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness Liabilities evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower Borrowers 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Loan and Security Agreement (Dynamics Research Corp)
Setoff. Regardless If one or more Events of the adequacy of any collateral, during the continuance of any Event of DefaultDefault as defined herein shall occur, any deposits Bank or commercial bank which is owed any obligation hereunder (a "Depositary") shall have the right, in addition to all other sums credited by or due from any of the Lenders rights and remedies available to it, and is hereby authorized, to the Borrower extent permitted by applicable law, at any time and from time to time, without notice to the Company (any securities or other property of such notice being hereby expressly waived by the Borrower in the possession of any Lender may be applied Company), to or set off by such Lenders against the payment of Obligations setoff and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other liabilitiesindebtedness (whether or not then due and payable) at any time owing by the Depositary to or for the credit or the account of the Company, direct, or indirect, absolute or contingent, due or to become due, against any and all of the obligations of the Company now existing or hereafter arising, existing under this Agreement irrespective of whether or not the Borrower to Depositary shall have made any demand for satisfaction of such Lenderobligations and although such obligations may be unmatured. Each Depositary 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 the Lenders such setoff and application. The rights of each Depositary under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff which such Depositary may have hereunder or under any applicable law). Each Depositary agrees with each other Lenders that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to it shall exercise any such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of banker's lien, setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership counterclaim or similar proceedingsright pursuant hereto, or otherwise, and shall retain and it will apply the proceeds thereof to the payment of Loans outstanding hereunder and (ii) if it shall through the Note exercise of a right of banker's lien, setoff, counterclaim or Notes otherwise obtain payment of a proportion of the Loans held by, such Lenders any amount by it in excess of its ratable portion the proportion of the payments received by all Loans of each of the Lenders with respect other Depositaries being paid simultaneously, it shall be deemed to have simultaneously purchased from each other Depositary a participation in the Notes Loans owed to such other Depositaries so that the amount of unpaid Loans and participations therein held by all Depositaries shall be proportionate to the original principal amount of the LendersLoans owed to them; provided that, such Lenders will make such disposition for purposes of this Section 13.03, the equivalent in Dollars of any Alternate Currency or the equivalent in any Alternate Currency of Dollars received hereunder, shall be determined in accordance with Section 2.05(a); 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 case it shall promptly remit to each such Depositary the amount of the Notes held by itparticipation thus deemed to have been purchased. The Company expressly consents to the foregoing arrangements, and in furtherance thereof, agrees that at such time as an Event of Default hereunder has occurred, the Administrative Agent shall provide to each Bank a schedule setting forth the Commitment (including and describing as a separate item the Alternate Currency Commitment) of each Bank hereunder to permit each Bank to correctly determine the portion which its proportionate payment as contemplated by this Credit Agreement; provided that if Commitment hereunder bears to the aggregate of all Commitments hereunder. If all or any part portion of any such excess payment is thereafter recovered from such Lenderthe Depositary which received the same, such disposition and arrangements the purchase provided for herein shall be deemed to have been rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless In addition to any rights of the adequacy of any collateralLenders under applicable law, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to the Borrower or the Guarantors (any Lender may such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or any Guarantor to such Lender under the Loan Documents; provided that with respect to Borrower’s commercial banking accounts with Xxxxx Fargo Bank, National Association, Xxxxx Fargo Bank, National Association, if it is a Lender, shall not exercise such right pursuant to this Agreement unless an Event of Default under §10.1(a), (b), (f) or (g) shall have occurred or the maturity of the Obligations has been accelerated. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 of the adequacy of The Borrowers agree that, in addition to (and without limitation of) any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaimbanker's lien or counterclaim a Lender may otherwise have, cross actioneach Lender shall be entitled, enforcement at its option, to offset balances (general or special, time or demand, provisional or final) held by it for the account of the claim evidenced Borrowers at any of such Lender's offices, in Dollars or in any other currency, against any amount payable by the Borrowers to such Lender under this Agreement or such Lender's Notes held by, which is not paid when due (regardless of whether such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply balances are then due to the Borrowers), in which case it shall promptly notify the Borrowers and the Agents thereof; provided that such Lender's failure to give such notice shall not affect the validity thereof. Each Lender agrees that to the extent any such payment of the Note or Notes held by, such Lenders any amount in excess of its ratable portion of the payments is received by all it as the result of a set-off or otherwise and such payment results in such Lender receiving a greater payment than it would have been entitled to, had the Lenders with respect total amount of such payment been paid directly to the Notes held by all of Agent for disbursement to the Lenders, then such Lender shall immediately purchase for cash from the other Lenders will make participations in the Loans and/or Participation in the Letters of Credit and/or the Letters of Indemnity sufficient in amount so that such disposition and arrangements payment shall effectively be shared pro rata with the other Lenders in accordance with respect the amount, and to such excessthe extent, either by way of distributiontheir respective interests in all the Loans, pro tanto assignment Participation in the Letters of claimsCredit, subrogation or otherwise as shall result in each Lender receiving in respect and the Letters of the Notes held by it56 Indemnity; provided, its proportionate payment as contemplated by this Credit Agreement; provided however, that if all or any part portion of such excess payment is thereafter recovered from such LenderLender at any time, such disposition and arrangements the purchase shall be rescinded and the amount restored purchase price returned to the extent of such recovery, but without interestinterest or other return thereof. In addition, the Borrowers further agree that any Lender shall be authorized to debit any account (general or special, time or demand, provisional or final) held by it for the account of the Borrowers at any of such Lender's offices, in Dollars or in any other currency, against any amount payable by the Borrowers to any other Lender under this Agreement. Payments by the Borrowers hereunder shall be made without setoff or counterclaim.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Lender to the Borrower or any of its Subsidiaries and any securities or other property of the Borrower or any of its Subsidiaries in the possession of any Lender may be applied to or set off by such Lenders Lender 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that Lender that: (ai) if an amount to be set off is to be applied to Indebtedness obligations of the Borrower or any of its Subsidiaries to such LendersLender, other than Indebtedness Obligations evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness Obligations and to the Indebtedness Obligations evidenced by all such Notes held by such Lenders, Lender and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any of its Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross actionor offset, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings proceeding against the Borrower or any of its Subsidiaries 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 or Notes held by, by such Lenders Lender 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 Lenders Lender will make such disposition dispositions and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claimsclaim, subrogation or otherwise as or shall result in each Lender receiving in respect on account of the Note or Notes held by it, it its proportionate payment as contemplated by this Credit Agreement; provided 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.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Cyalume Technologies Holdings, Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or Guarantor and any securities or other property of the Borrower or Guarantor in the possession of such Lender may, without notice to Borrower or Guarantor (any Lender may such notice being expressly waived by Borrower and Guarantor) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower such Person to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 of the adequacy of Guarantor hereby authorizes Lender, at any collateraltime and from time to time, during the continuance of any without notice, which is hereby expressly waived by Guarantor, and whether or not an Event of Default, any deposits Default shall have occurred or other sums credited by or Lender shall have declared the Guaranteed Obligations to be due from any of and payable in accordance with the Lenders terms hereof (i) to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders against the payment of Obligations and any and all other liabilitiesagainst, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain appropriate and apply to the payment of the Note Guarantor’s obligations and liabilities under this Guaranty (whether matured or Notes held byunmatured, such Lenders fixed or contingent, liquidated or unliquidated), any amount and all amounts owing by Lender to Guarantor (whether payable 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 Lenders 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 Credit Agreement; provided that if all U.S. dollars or any part other currency, whether matured or unmatured, and in the case of deposits, whether general or special (except trust and escrow accounts), time or demand and however evidenced) and (ii) pending any such excess payment is thereafter recovered from such Lenderaction, such disposition and arrangements shall be rescinded and the amount restored to the extent necessary, to hold such amounts as collateral to secure such obligations and liabilities and to return as unpaid for insufficient funds any and all checks and other items drawn against any deposits so held as Lender, in its sole discretion, may elect. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of a demand for payment of the Guaranteed Obligations hereunder without any action of Lender, although Lender may enter such recoverysetoff on its books and records at a later time. No failure by Lender to file, but without record or otherwise perfect any lien or security interest, nor any improper filing or recording, nor any failure by Lender to insure or protect any security nor any other dealing (or failure to deal) with any security by Lender, shall impair or release the obligations of Guarantor hereunder.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower and Parent) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Cogdell Spencer Inc.)
Setoff. Regardless In addition to any rights now or hereafter granted ------ under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Default or Event of Default, the Agent and each of the Lenders and each subsequent holder of any of the Notes is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower, to any Subsidiary of 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 special, including, but not limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other sums credited Indebtedness at any time held or owing by the Agent or due from the Lenders or that subsequent holder to or for the credit or the account of the Borrower, whether or not matured, against and on account of the obligations and liabilities of the Borrower to the Agent or the Lenders or that subsequent holder under the Credit Documents, including, but not limited to, all claims of any nature or description arising out of or connected with the Credit Documents, irrespective of whether or not (i) the Agent or any of the Lenders to or that subsequent holder shall have made any demand hereunder or (ii) the Borrower principal of or the interest on the Loans, the Notes and other amounts due hereunder shall have become due and payable hereunder and although said obligations and liabilities, or any securities or other property of the Borrower in the possession of any Lender them, may be applied to contingent or set off by such Lenders against the payment of Obligations unmatured. The Agent and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. Each of the Lenders agrees with each agree, if there shall be any other Lenders pursuant to Section 10.10(b), that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness a Lender receives and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrowerretains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment on any of the Note Loans or Notes held by, such Lenders any amount L/C Obligations in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessamount of the Loans or L/C Obligations, either or participations therein, held by way of distribution, pro tanto assignment of claims, subrogation such Lender (or otherwise interest therein) as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the portion of such excess payment so recovered, with interest pro rata, to the extent of such recovery, but without interestthe purchasing Lender is required to pay interest on the amount restored.
Appears in 1 contract
Samples: Secured Credit Agreement (Palex Inc)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Banks to either of the Borrower or the Parent and any securities or other property of the Borrower or the Parent in the possession of any Lender such Bank may be applied to or set off by such Lenders Bank 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 Borrower or the Parent to such LenderBank. Each of the Lenders Banks agrees with each other Lenders Bank that (ai) except with respect to the amount of any check or electronic equivalent deposited with such Bank and credited to the Borrower's or the Parent's account maintained with such Bank which is subsequently returned to the Borrower or the Parent unpaid, if an amount to be set off is to be applied to Indebtedness of the Borrower or the Parent to such LendersBank, other than Indebtedness the Obligations evidenced by the Notes held by such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness Obligations evidenced by all such Notes held by such LendersBank, and (bii) if such Lenders Bank shall receive from the BorrowerBorrower or the Parent, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Bank by proceedings against the Borrower or the Parent 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 or Notes held by, by such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by 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 LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, if any, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower such Person to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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: Term Loan Agreement (Dupont Fabros Technology, Inc.)
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Lender to the Borrower and any securities or other property Property of the Borrower in the possession of any such Lender may be applied to or set off by such Lenders Lender 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 Borrower to such Lender. Each of the Lenders Lender agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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 Credit 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.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any such Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if Lender as follows: If an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Notes Note held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes the Note held by such Lenders, and (b) if Lender. If such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes Note held by, by such Lenders Lender by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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 Note held by it, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Humphrey Hospitality Trust Inc)
Setoff. Regardless of the adequacy of any collateral, if any, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower such Person to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of any Lender such Bank may be applied to or set off by such Lenders Bank 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 Borrower to such LenderBank. Each of the Lenders Banks agrees with each other Lenders Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersBank, other than Indebtedness evidenced by the Notes held by such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersBank, and (b) if such Lenders Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Bank by proceedings Proceedings against the Borrower at law or in equity or Borrower, by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedingsProceedings, or otherwise, and shall retain and apply to the payment of the Note or Notes held by, by such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by all of the LendersBanks (exclusive of payments to be made for the account of less than all of the Banks as provided in Sections 4.6, 4.7, 4.8, and 4.9), such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro --- tanto assignment of claims, subrogation subrogation, or otherwise as shall result in each Lender ----- Bank receiving in respect of the Notes held by it, 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 LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Long Term Credit Agreement (Pimco Advisors Holdings Lp)
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors, if any, and any securities or other property of the Borrower or the Guarantors, if any, in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor, if any, (any such notice being expressly waived by the Borrower and the Guarantors, if any) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors , if any, to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, if any, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Event of Default, each Lender and each subsequent holder of any deposits Note is hereby authorized by the Borrower at any time or other sums credited by or due from any of the Lenders time to time, without notice to the Borrower and or any securities or other property of the Borrower in the possession of Person, any Lender may be applied such notice being hereby expressly waived, to or set off by such Lenders 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 in whatever currency denominated) and any other liabilitiesIndebtedness at any time owing by that Lender or that subsequent holder to or for the credit or the account of the Borrower, directwhether or not matured, or indirect, absolute or contingent, against and on account of the due or to become due, now existing or hereafter arising, and unpaid obligations and liabilities of the Borrower to such Lenderthat Lender or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender or that subsequent holder shall have made any demand hereunder. Each Lender shall promptly give notice to the Borrower of any action taken by it under this Section 10.6, provided that any failure of such Lender to give such notice to the Lenders Borrower shall not affect the validity of such setoff. Each Lender agrees with each other Lenders Lender a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the BorrowerLender receives and retains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment in respect of the Note or Notes held by, such Lenders any amount Term Loan in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excess, either amount of the Term Loan held by way of distribution, pro tanto assignment of claims, subrogation or otherwise each such other Lender as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest.
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Setoff. Regardless of the adequacy of any collateral, during collateral for the continuance of any Event of DefaultObligations, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders following an Event of Default against the payment of Obligations any principal, interest and any and all other liabilities, direct, or indirect, absolute or contingent, amounts due or to become due, now existing or hereafter arising, of from the Borrower to such Lenderthe Banks at any time without notice to the Borrower, or compliance with any other procedure imposed by statute or otherwise, all of which are hereby expressly waived by the Borrower. Each of the Lenders Banks agrees with each other Lenders Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersBank, other than Indebtedness evidenced by the Revolving Credit Notes held by such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such LendersBank, and (b) if such Lenders Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, by such Lenders Bank by proceedings against the Borrower 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 Revolving Credit Note or Revolving Credit Notes held by, by such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Revolving Credit Notes held by all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or --- ----- otherwise as shall result in each Lender Bank receiving in respect of the Revolving Credit Notes held by 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 LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit Agreement (CMG Information Services Inc)
Setoff. Regardless of the adequacy of any collateral, if any, 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 of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower such Person to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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.
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Setoff. Regardless The Borrower agrees that, in addition to (and without limitation of) any right of the adequacy of setoff, banker's lien or counterclaim a Bank may otherwise have, each Bank shall be entitled, at its option without any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders prior notice to the Borrower and (any securities such notice being expressly waived by the Borrower to the extent permitted by applicable law), to offset balances (general or other property special, time or demand, provisional or final) held by it for the account of the Borrower at any of such Bank's offices, in the possession of Dollars or in any Lender may be applied to or set off other currency, against any amount payable by such Lenders 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 Borrower to such LenderBank under this Agreement or such Bank's Note which is not paid when due (regardless of whether such balances are then due to the Borrower), in which case it shall promptly notify the Borrower thereof; provided that such Bank's failure to give such notice shall not affect the validity thereof. Payments by the Borrower thereof hereunder shall be made without setoff or counterclaim. Each Bank agrees that if it shall, through the exercise of a right of banker's lien, set-off, counterclaim or otherwise, obtain any payments from the Borrower or any of the Lenders agrees with each other Lenders that Guarantors, all such payments shall first be applied to the repayment of the outstanding Obligations, and such Bank will (a) if an amount be deemed to be set off is to be applied to Indebtedness of have simultaneously purchased from the Borrower to such Lenders, other than Indebtedness evidenced by Banks a share in the Notes Obligations held by such Lender, such Banks so that the amount of the Obligations held by each of the Banks shall be applied ratably on a pro rata basis (provided, however, that for purposes of this Section, the term "pro-rata" will be determined with respect to each Bank's Commitment Proportion of outstanding Obligations after subtraction in each case of amounts, if any, by which any such other Indebtedness and Bank has not funded an amount equal to the Indebtedness evidenced by all such Notes held by such Lenders, its Commitment Proportion of outstanding Obligations) and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, such Lenders 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 Lenders will make such disposition and arrangements with the other Lenders Banks with respect to such excesspayments, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by it, such payments its proportionate payment Commitment Proportion thereof as contemplated by this Credit Agreement; provided that if hereby. If all or any part portion of such excess payment any of the payments referenced above is thereafter recovered from such Lenderthe Bank which received the same, such disposition and arrangements the purchase provided in this Section shall be rescinded and the amount restored to the extent of such recovery, but without interest. The Borrower and the Guarantors expressly consent to the foregoing arrangements and agree that each Bank so purchasing a portion of the other Banks' Obligations may exercise all rights of payment with respect to such portion as fully as if such Bank were the direct holder of such portion.
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Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any such Lender may be applied to or set off by such Lenders Lender against the payment of Borrower's 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 such Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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 Credit Loan 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.
Appears in 1 contract
Samples: Loan Agreement (Omnipoint Corp \De\)
Setoff. Regardless of the adequacy of any collateral, during 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 of the Lenders Lender or any Affiliate thereof to the Borrower or any Subsidiary Guarantor and any securities or other property of the Borrower or any Subsidiary Guarantor in the possession of such Lender or any Lender may Affiliate may, without notice to any Borrower (any such notice being expressly waived by Borrower and the Subsidiary Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or any Subsidiary Guarantor to such Lender. Each of the Lenders Lender agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Subsidiary Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders against the payment of Obligations or the Hedge 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 Borrower or the Guarantors to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 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 of the adequacy of any collateralCollateral, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and each Guarantor) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees agree with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Guarantors, whether by voluntary payment, exercise of the US_ACTIVE\121755035\V-6 right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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) such 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 (GTJ Reit, Inc.)
Setoff. Regardless of the adequacy of any collateral, during 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 of the Lenders Lender or any Affiliate thereof to the Borrower or any Subsidiary Guarantor and any securities or other property of the Borrower or any Subsidiary Guarantor in the possession of such Lender or any Lender may Affiliate may, without notice to any Borrower (any such notice being expressly waived by Borrower and the Subsidiary Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or any Subsidiary Guarantor to such Lender. Each of the Lenders Lender agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Subsidiary Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. §14. AGENT .
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, 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 of the Lenders Lender to the Borrower or the Guarantors, if any, and any securities or other property of the Borrower or the Guarantors, if any, in the possession of such Lender (or such Lender’s Affiliate) may, without notice to the Borrower or any Lender may Guarantor, if any, (any such notice being expressly waived by the Borrower and the Guarantors, if any) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower or the Guarantors , if any, to such Lender, Agent will promptly provide Borrower with notice of any such set off of which Agent has received written notice. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or a Guarantor, if any, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender (but excluding any Swing Loan Notes) 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 Lenders 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, 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 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 of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any such Lender may be applied to or set off by such Lenders Lender 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Term Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by all such Term Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Term Notes held by, by such Lenders Lender by proceedings against the Borrower 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 or Term Notes held by, by such Lenders Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Term Notes held by by, all of the Lenders, such Lenders Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Term Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided 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.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any such Lender may be applied to or set off by such Lenders Lender against the payment of Obligations owing (whether or not then due and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, payable) of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Revolving Credit Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Revolving Credit Notes held by such Lenders, Lender or constituting Reimbursement Obligations owed to such Lender and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, such Lenders Lender by proceedings against the Borrower 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 Revolving Credit Note or Revolving Credit Notes held by, or constituting Reimbursement Obligations owed to, such Lenders Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Revolving Credit Notes held by all of the Lenders, such Lenders 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 Revolving Credit Notes held by it 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Samples: Revolving Credit Agreement (Blue Steel Capital Corp)
Setoff. Regardless of the adequacy of any collateral, during During the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of any Lender such Bank may be applied to or set off by such Lenders Bank against the payment of Obligations and any and all other liabilities, direct, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderBank which are then due and payable. Each of the Lenders Banks agrees with each other Lenders Bank that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, Bank other than Indebtedness evidenced by the Notes held by such LenderBank or constituting Reimbursement Obligations owed to such Bank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, Bank or constituting Reimbursement Obligations owed to such Bank and (bii) if such Lenders Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, or constituting Reimbursement Obligations owed to, such Lenders Bank by proceedings against the Borrower 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 or Notes held by, or Reimbursement Obligations owed to, such Lenders Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes held by by, or Reimbursement Obligations owed to, all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes held by it, 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 LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
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Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount Except to the extent that this Agreement or a court order expressly provides for payments to be set off is allocated to be applied a particular Lender or to Indebtedness the Lenders under a particular Facility, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the Borrower Obligations owing to such Lenders, it (other than Indebtedness evidenced in connection with an assignment made pursuant to Section 12.1), or receive any Collateral in respect thereof (whether voluntarily or involuntarily, by the Notes held by such Lenderset-off, such amount shall be applied ratably pursuant to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise events or proceedings of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or nature referred to in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedingsSection 7.6, or otherwise), and shall retain and apply in a greater proportion than any such payment to the payment of the Note or Notes held by, such Lenders any amount in excess of its ratable portion of the payments Collateral received by all of the Lenders with respect to the Notes held by all of the Lendersany other Lender, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessif any, 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 itObligations owing to such other Lender, its proportionate such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such Collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment as contemplated by this Credit Agreementor benefits of such Collateral ratably with each of the Lenders; provided provided, however, that if all or any part portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such disposition and arrangements purchase shall be rescinded rescinded, and the amount restored purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon any Obligations becoming due and payable by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, any Affiliate thereof or any of their respective branches or agencies to or for the credit or the account of the Borrower; provided that if any Defaulting Lender shall exercise any such right of setoff, (i) 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 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Lender, the Swing Line Lender and the Lenders and (ii) 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 set-off. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such application made by such Lender, provided that the failure to give such notice shall not affect the validity of such application.
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Setoff. Regardless of the adequacy of any collateral, 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 of where such deposits are held) or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers or any Guarantor and any securities or other property of any of the Borrower Borrowers or any Guarantor in the possession of any such Lender may be applied to or set off by such Lenders 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 Borrower Borrowers to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from any of the BorrowerBorrowers or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, Obligations owed to such Lenders Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes Obligations held by all of the Lenders, such Lenders 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 Obligations held by it, 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 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 of the adequacy of any collateralCollateral, 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 of the Lenders Lender or any Affiliate thereof to the Borrower Loan Parties and any securities or other property of the Borrower Loan Parties in the possession of such Lender or any Lender may 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 by such Lenders 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 Borrower Loan Parties to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 (Wheeler Real Estate Investment Trust, Inc.)
Setoff. Regardless of the adequacy of any collateralWithout demand or notice, 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 at which such deposits are held, but specifically excluding tenant security deposits, other fiduciary accounts and other segregated escrow accounts required to be maintained by the Borrower for the benefit of any third party) or other sums credited by or due from any of the Lenders to the Borrower and or its Subsidiaries or any securities or other property of the Borrower or its Subsidiaries in the possession of any the Administrative Agent or a Lender may be applied to or set off by such Lenders 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 Borrower to such LenderObligations. Each of the Lenders agrees with each other Lenders Lender that (a) if pursuant to any agreement between such Lender and the Borrower (other than this Agreement or any other Loan Document), an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by with respect to the Notes held by such LenderObligations, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersObligations, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or its Subsidiaries, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders Obligations by proceedings against the Borrower or its Subsidiaries 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 or Notes held by, or Reimbursement Obligations owed to, such Lenders Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Notes held by by, and Reimbursement Obligations owed to, all of the Lenders, such Lenders Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise otherwise, as shall result in each Lender receiving in respect of the Notes held by it or Reimbursement Obligations owed it, its proportionate payment as contemplated by this Credit Agreement; provided 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. Notwithstanding the foregoing, no Lender shall exercise a right of setoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower or its Subsidiaries; and PROVIDED FURTHER, if a Lender receives any amount in connection with the enforcement by such Lender against any particular assets held as collateral for Secured Indebtedness existing on the date hereof and unrelated to the Obligations which is owing to such Lender by the Borrower, such Lender shall not be required to ratably apply such amount to the Obligations.
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Setoff. Regardless In addition to any rights now or hereafter granted under applicable law and not by way of the adequacy limitation of any collateralsuch rights, during upon the occurrence of, and throughout the continuance of of, any Event of Default, each Lender and each subsequent holder of any deposits Note is hereby authorized by the Borrower at any time or other sums credited by or due from any of the Lenders time to time, without notice to the Borrower and or any securities or other property of the Borrower in the possession of Person, any Lender may be applied such notice being hereby expressly waived, to or set off by such Lenders 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 in whatever currency denominated) and any other liabilitiesIndebtedness at any time owing by that Lender or that subsequent holder to or for the credit or the account of the Borrower, directwhether or not matured, or indirect, absolute or contingent, against and on account of the due or to become due, now existing or hereafter arising, and unpaid obligations and liabilities of the Borrower to such Lenderthat Lender or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender or that subsequent holder shall have made any demand hereunder. Each Lender shall promptly give notice to the Borrower of any action taken by it under this Section 10.6, provided that any failure of such Lender to give such notice to the Lenders Borrower shall not affect the validity of such setoff. Each Lender agrees with each other Lenders Lender a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the BorrowerLender receives and retains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment in respect of the Note or Notes held by, such Lenders any amount Loans in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to the Notes held by all hereunder, then such Lender shall purchase for cash at face value, but without recourse, ratably from each of the Lenders, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excess, either amount of the Loans and participations therein held by way of distribution, pro tanto assignment of claims, subrogation or otherwise each such other Lender as shall result in each be necessary to cause such Lender receiving in respect of the Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of to share such excess payment ratably with all the other Lenders; provided, however, that if any such purchase is made by any Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements the related purchases from the other Lenders shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Transocean Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any Lender may be applied to or set off by such Lenders 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 Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount Except to the extent that this Agreement or a court order expressly provides for payments to be set off is allocated to be applied to Indebtedness a particular Lender, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the Borrower Obligations owing to such Lenders, it (other than Indebtedness evidenced in connection with an assignment made pursuant to Section 12.1), or receive any Collateral in respect thereof (whether voluntarily or involuntarily, by the Notes held by such Lenderset off, such amount shall be applied ratably pursuant to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders shall receive from the Borrower, whether by voluntary payment, exercise events or proceedings of the right of setoffnature referred to in Section 7.6, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedingsSection 7.7, or otherwise), and shall retain and apply in a greater proportion than any such payment to the payment of the Note or Notes held by, such Lenders any amount in excess of its ratable portion of the payments Collateral received by all of the Lenders with respect to the Notes held by all of the Lendersany other Lender, such Lenders will make such disposition and arrangements with the other Lenders with respect to such excessif any, 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 itObligations owing to such other Lender, its proportionate such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such Collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment as contemplated by this Credit Agreementor benefits of such Collateral ratably with each of the Lenders; provided provided, however, that if all or any part portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such disposition and arrangements purchase shall be rescinded rescinded, and the amount restored purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon any Obligations becoming due and payable by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, any Affiliate thereof or any of their respective branches or agencies to or for the credit or the account of the Borrower; provided that if any Defaulting Lender shall exercise any such right of setoff, (i) 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 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Lender, the Swing Line Lender and the Lenders and (ii) 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 set off. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such application made by such Lender, provided that the failure to give such notice shall not affect the validity of such application.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateralCollateral, 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 of the Lenders Lender or any Affiliate thereof to the Borrower or the Pledgor and any securities or other property of the Borrower such parties in the possession of such Lender or any Lender may Affiliate may, without notice to the Borrower (any such notice being expressly waived by the Borrower) but with the prior written approval of the Agent, be applied to or set off by such Lenders 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 Borrower or the Pledgor to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or the Pledgor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. Regardless of the adequacy of any collateral, if any, during the continuance of any Event of Default, any deposits (general or specific, time or demand, whatever currency, provisional or final, regardless of currency, maturity, or the branch where such deposits are held) or other sums credited by or due from any of the Lenders Lender to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of such Lender may, without notice to Borrower or any Lender may Guarantor (any such notice being expressly waived by Borrower and Guarantors) but with the prior written approval of Agent, be applied to or set off by such Lenders 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 Borrower such Person to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders 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 Lenders 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, 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 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 of the adequacy of any collateralCollateral, during the continuance of any Event of Default, to the extent permitted by applicable law, 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 of the Lenders Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or the Guarantors in the possession of such Lender may, without notice to the Borrower or any Lender may Guarantor (any such notice being expressly waived by the Borrower and the Guarantors) but with the prior written approval of the Required Lenders, be applied to or set off by such Lenders 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 Borrower or the Guarantors to such LenderLender under the Loan Documents. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Lender shall receive from the BorrowerBorrower or Guarantors, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, by such Lenders Lender (but excluding the Swingline 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 Lenders 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, 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 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 Administrative 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 (b) such 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.
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Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of any such Lender may be applied to or set off by such Lenders Lender 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 any of the Borrower Borrowers to such Lenderthe Lenders. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of any of the Borrower Borrowers to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders Lender by proceedings against the such Borrower 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 or Notes held by, by such Lenders Lender 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 Lenders 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, it or 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
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Setoff. Regardless of the adequacy of any collateralCollateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of any such Lender may be applied to or set off by such Lenders Lender 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 Borrower Borrowers to such Lender. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lenders, Lender other than Indebtedness evidenced by the Term Loan Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Term Loan Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Term Loan Notes held by, by such Lenders Lender by proceedings against the Borrower Borrowers 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 or Term Loan Notes held by, by such Lenders Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Term Loan Notes held by all of the Lenders, such Lenders 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 Term Loan Notes held by 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest, provided, further, that the foregoing shall not apply to any amount received by any Lender or its Affiliates in connection with, or related to, transactions, including financial accommodations and leases, with any of the Borrowers which are not related to the transactions contemplated by this Credit Agreement or the Prepetition Notes.
Appears in 1 contract
Samples: Credit Agreement (WorldSpace, Inc)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any deposits or other sums credited by or due from any of the Lenders (a) Notwithstanding anything to the Borrower contrary contained in this Agreement, subject to the limitations set forth in this Section 7.05 and in Section 7.06, with respect to any securities US Working Capital Shortfall or other property Canadian Working Capital Shortfall required under Section 2.04(f) to be paid by Seller to Buyer or any payment required under this Article VII to be made by Seller to any Buyer Indemnified Person for any indemnification claim (together with interest thereon (if any) and all costs and expenses related thereto with respect to which any Buyer Indemnified Person is entitled to recover under the provisions of this Agreement, a “Seller Payment”), Buyer shall have the Borrower right, in Buyer’s sole discretion, to satisfy the possession amount of any Lender may be applied to or set off such Seller Payment by such Lenders against the payment set-off, offset, and reduction of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, amounts then due or to be become duedue to Seller under this Agreement or any other Transaction Document, now existing including the Escrow Amount, the Earn-Out Amount, or hereafter arisingany other payment stream, agreement or obligation of the Borrower to such Lender. Each of the Lenders agrees with each other Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lendersany kind or nature whatsoever, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and subject to the Indebtedness evidenced by all such Notes held by such Lenders, and requirements of applicable Laws.
(b) if such Lenders shall receive from the Borrower, whether by voluntary payment, Buyer may only exercise of the right of setoff, counterclaim, cross action, enforcement set-off provided in this Article VII in respect of claims relating to Losses actually incurred by Buyer (in which case the amount of such set-off shall be the amount of such actual Losses) or claims actually asserted by a third Person (in which case the amount of the claim evidenced set-off shall not exceed the Buyer’s good faith estimate of the amount of indemnifiable Losses that will ultimately be payable to Buyer in respect of such claims). If any such claims for indemnity are resolved in favor of Sellers by the Notes held by, such Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, mutual agreement or otherwise, and shall retain and apply or if the amount set-off exceeds the amount ultimately payable to the payment Buyer in respect of such claim, Buyer shall pay to the Seller the excess of such set-off amount. In the event that the amount set-off by Buyer is equal to or greater than 25% of the Note or Notes held byamount ultimately payable to Buyer in respect of such claim, then Buyer shall also pay to Seller interest at a rate of 6% per annum on such excess amount, such Lenders interest to accrue from the date on which such set-off amount would have been paid to the Seller but for the claim in question. Neither the exercise of nor the failure to exercise such right of setoff or offset will constitute an election of remedies or limit any amount Buyer Indemnified Person in excess any manner in the enforcement of its ratable portion any other remedies that may be available to any Buyer Indemnified Person.
(c) Notwithstanding the survival periods set forth in Section 7.04, if Buyer provides a notice of the payments received by all of the Lenders a claim seeking indemnification with respect to any actual or alleged Loss prior to the Notes held by all expiration of the Lendersapplicable time period set forth in Section 7.04, such Lenders will make such disposition Buyer shall be entitled to satisfy any set-off amount pursuant to this Section 7.05 by reduction and arrangements set-off from any amounts to be paid to Seller after the expiration of the applicable time periods set forth in Section 7.04.
(d) To the extent not set-off against the Earn-Out Amount, Buyer and Seller agree that any Seller Payment, including all amounts determined as payable as a result of any claim by a Buyer Indemnified Person for indemnification under this Article VII, shall be paid first with the Escrow Amount in accordance with the Escrow Agreement. Seller further acknowledges and agrees that it shall instruct the Escrow Agent to pay such amounts to Buyer from the Escrow Amount and to take all other Lenders with respect actions reasonably necessary to cause Escrow Agent to make any 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 Credit 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 interestpayment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Wayside Technology Group, Inc.)
Setoff. Regardless of the adequacy of any collateral, 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 of where such deposits are held) or other sums credited by or due from any of the Lenders Banks to the Borrower or any Guarantor and any securities or other property of the Borrower or any Guarantor in the possession of any Lender such Bank may be applied to or set off by such Lenders against the payment of Obligations of such Person and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower such Person to such LenderBank; provided that no Bank shall exercise such right of setoff without the prior approval of the Agent, such approval to not be unreasonably withheld. Each of the Lenders Banks agrees with each other Lenders Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenders, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such Lenders, and (b) if such Lenders Bank shall receive from the BorrowerBorrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by the Notes held by, such Lenders by proceedings against the Borrower 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 or Notes held by, Obligations owed to such Lenders Bank (but excluding any Swing Line Note) any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Notes Obligations held by all of the LendersBanks, such Lenders Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Notes Obligations held by it, 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 LenderBank, 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 Bank 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 Bank from its other funds and deemed held in trust for the benefit of the Agent and the Banks, and (b) the Defaulting Bank shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Bank as to which it exercised such right of setoff.
Appears in 1 contract
Samples: Unsecured Master Loan Agreement (Ramco Gershenson Properties Trust)
Setoff. Regardless of the adequacy of any collateral, during the continuance of any Event of Default, any Collateral or deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of any such Lender may may, upon the consent of the Majority Lenders, be applied to or set off by such Lenders 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 Borrower to such LenderLender at any time after the occurrence and during the continuance of any Event of Default. Each of the Lenders agrees with each other Lenders Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LendersLender, other than Indebtedness evidenced by the Notes held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by all such Notes held by such LendersLender, and (b) if such Lenders Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross cross-action, enforcement of the claim evidenced by the Notes held by, by such Lenders Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, proceedings or otherwise, and shall retain and apply to the payment of the Note or Notes held by, by such Lenders Lender 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 Lenders Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto tanto, assignment of claims, subrogation subrogation, or otherwise as shall result in each Lender receiving in respect of the Notes held by it, 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 Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
