Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof. (b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored. (c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation. (d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 14 contracts
Samples: Loan and Security Agreement (Farmer Brothers Co), Loan and Security Agreement (Latrobe Specialty Metals, Inc.), Loan and Security Agreement (Hancock Fabrics Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each If a Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of of, or interest on on, any Loan owing of a Class made by it to it or payment of any other amount the Borrower under this Agreement or shall obtain payment on any of other Obligation owing by the Borrower or any other Financing Agreements Loan Party through the exercise of any right of setoffset-off, banker’s lien or lien, counterclaim or similar right or otherwise (or through voluntary prepayments directly to a Lender or other than from Agent as provided herein), andpayments made by or on behalf of the Borrower or any other Loan Party to a Lender not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders of the same Class in accordance with Section 3.2. or Section 11.5., as a result of such paymentapplicable, such Lender shall have received more than its Pro Rata Share promptly purchase from the other Lenders of such Class participations in (or, if and to the principal of extent specified by such Lender, direct interests in) the Loans or more than its share of such Class made by the other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount Lenders of such excess and simultaneously purchase from such Class or other Lenders a participation in the Loans or such other amounts, respectively, owing Obligations owed to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders of such Class shall share the benefit of such excess payment (net of any reasonable expenses that which may actually be incurred by such Lender in obtaining or preserving such excess paymentbenefit) in accordance with their respective Pro Rata Shares the requirements of Section 3.2. or Section 11.5., as otherwise agreed by Lendersapplicable. To such end end, all the Lenders of such Class shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each . The Borrower and Guarantor agrees that any Lender of such Class so purchasing a participation (or direct interest) as provided in this Section the Loans or other Obligations owed to such other Lenders of such Class may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to of such Lender Class in the amount of such participation.
(d) . Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, exercise and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimBorrower.
Appears in 10 contracts
Samples: Term Loan Agreement (Realty Income Corp), Revolving Credit and Term Loan Agreement (Broadstone Net Lease, Inc.), Credit Agreement (Realty Income Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor of the Credit Parties agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers’ lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor any of the Credit Parties at any of its offices, in dollars or in any other currency, offices against any principal of or interest on any of such Lender’s Term Loans owed to such Lender the Borrower hereunder, or any other amount payable to such Lender hereunder, that is not paid when due Obligation of the Borrower hereunder (regardless of whether such Obligations of the Borrower are then due and regardless of whether such offset balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Agent thereof; , provided, that, that such Lender’s failure to give such notice shall not affect the validity thereof.
(b) . If any a Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Term Loan owing to made by it or payment of any other amount under this Agreement Agreement, or any of the other Financing Agreements obligation then due to such Lender hereunder, through the exercise of any right of setoffset-off (including, without limitation, any right of set-off or lien granted under Section 10.19 hereof), banker’s lien or lien, counterclaim or similar right right, or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lenderotherwise, it shall promptly pay to Agentpurchase from the other Lenders participations in the Term Loans made by, for or the benefit other obligations of Lendersthe Borrower hereunder of, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, equitable to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess paymentbenefit) pro-rata in accordance with their respective Pro Rata Shares or as otherwise agreed by LendersTerm Loan Commitment Percentages. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) . Each Borrower and Guarantor agrees of the Credit Parties agrees, to the fullest extent it may effectively do so under applicable law, that any Lender so purchasing a participation (in the Loans made by or direct interest) as provided in this Section other obligations hereunder of, the other Lenders may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s bankers’ lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of said Loans or other amounts (as the case may be) owing to such Lender obligations in the amount of such participation.
(d) . Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimBorrower.
Appears in 6 contracts
Samples: Term Loan Agreement (Animal Health International, Inc.), Term Loan Agreement (Animal Health International, Inc.), Term Loan Credit Agreement (Animal Health International, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees thatIf any Bank shall effect payment, in addition to (and without limitation of) cash or otherwise, of any right of setoff, banker’s lien Facility Fees or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed a Loan made by it to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such the Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s lien or bankers’ lien, counterclaim or similar right or otherwise (other than from Agent as provided herein)right, and, as a result of and such payment, such Lender Bank shall have received more than its Pro Rata Share a greater percentage, in cash or otherwise, of the Facility Fees or the principal of the Loans or more than its share of such other amounts interest then due hereunder or thereunder by any Borrower or Guarantor to such Lender Bank in respect of its Loans than the percentage thereof received by any other LenderBank, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such the other Lenders a participation Banks participations in the Loans or such made by the other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) Banks in such amounts, and make such other adjustments from time to time as shall be equitable, equitable to the end that all Lenders the Banks shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares or as otherwise agreed the unpaid Facility Fees, principal and interest on the Loans held by Lenderseach of them. To such end all Lenders the Banks shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each . The Borrower and Guarantor agrees that any Lender Bank so purchasing a participation (or direct interest) as provided in the Loans made by the other Banks under this Section 5.7 may exercise, in a manner consistent with this Section, to the extent permitted by applicable law exercise all rights of setoffset-off, banker’s bankers’ lien, counterclaim or similar rights with respect to such participation as fully as if such Lender Bank were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) . Nothing contained herein shall require any Lender Bank to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender Bank to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any the Borrower. The Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shallagrees, to the fullest extent practicableit may effectively do so under applicable law, assign that any holder of a participation in a Loan, whether or not acquired pursuant to the foregoing arrangements, may to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such rights participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation. In the event that any Defaulting Bank shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.9 and, pending such payment, shall be segregated by such Defaulting Bank from its other funds and deemed held in trust for the benefit of Lenders andthe Administrative Agent and the Banks, and (y) the Defaulting Bank shall provide promptly to the Administrative Agent a statement describing in any event, exercise its rights in respect reasonable detail the obligations owing to such Defaulting Bank as to which it exercised such right of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimsetoff.
Appears in 5 contracts
Samples: Credit Agreement (American Honda Finance Corp), Five Year Credit Agreement (American Honda Finance Corp), 364 Day Credit Agreement (American Honda Finance Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 5 contracts
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Pemstar Inc), Loan and Security Agreement (Commerce Energy Group Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower Obligor and of the existence or Guarantoradequacy of any security therefor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.7 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.7 to share in the benefits of any recovery on such secured claim.
Appears in 5 contracts
Samples: Credit Agreement (Genzyme Corp), Credit Agreement (Genzyme Corp), Credit Agreement (Genzyme Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees thatIf any Bank shall effect payment, in addition to (and without limitation of) cash or otherwise, of any right of setoff, banker’s lien Facility Fees or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed a Loan made by it to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such the Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s lien or bankers’ lien, counterclaim or similar right or otherwise (other than from Agent as provided herein)right, and, as a result of and such payment, such Lender Bank shall have received more than its Pro Rata Share a greater percentage, in cash or otherwise, of the Facility Fees or the principal of the Loans or more than its share of such other amounts interest then due hereunder or thereunder by any Borrower or Guarantor to such Lender Bank in respect of its Loans than the percentage thereof received by any other LenderBank, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such the other Lenders a participation Banks participations in the Loans or such made by the other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) Banks in such amounts, and make such other adjustments from time to time as shall be equitable, equitable to the end that all Lenders the Banks shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares or as otherwise agreed the unpaid Facility Fees, principal and interest on the Loans held by Lenderseach of them. To such end all Lenders the Banks shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each . The Borrower and Guarantor agrees that any Lender Bank so purchasing a participation (or direct interest) as provided in the Loans made by the other Banks under this Section 5.7 may exercise, in a manner consistent with this Section, to the extent permitted by applicable law exercise all rights of setoffset-off, banker’s bankers’ lien, counterclaim counterclaim, or similar rights with respect to such participation as fully as if such Lender Bank were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) . Nothing contained herein shall require any Lender Bank to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender Bank to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any the Borrower. The Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shallagrees, to the fullest extent practicableit may effectively do so under applicable law, assign that any holder of a participation in a Loan, whether or not acquired pursuant to the foregoing arrangements, may to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such rights participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation. In the event that any Defaulting Bank shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.9 and, pending such payment, shall be segregated by such Defaulting Bank from its other funds and deemed held in trust for the benefit of Lenders andthe Administrative Agent and the Banks, and (y) the Defaulting Bank shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Bank as to which it exercised such right of setoff. For the avoidance of doubt, the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Bank as consideration for the assignment of or sale of a participation in any eventof its Loans or Commitments to any assignee or participant, exercise its rights in respect other than to the Borrower or any Subsidiary thereof (as to which the provisions of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimparagraph shall apply).
Appears in 4 contracts
Samples: Five Year Credit Agreement (American Honda Finance Corp), Three Year Credit Agreement (American Honda Finance Corp), 364 Day Credit Agreement (American Honda Finance Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 4 contracts
Samples: Loan and Security Agreement (Franks Nursery & Crafts Inc), Loan and Security Agreement (Delta Apparel Inc), Loan and Security Agreement (Delta Apparel Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorany Borrower), in which case it shall promptly notify Administrative Borrower Borrowers and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Borrowers to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 3 contracts
Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and between Lenders, to the provisions of the last sentence of Section 12.3(b) hereof1.1(g)), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender’s Revolving Credit Advances or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s failure to give such notice shall not affect the validity thereof. For avoidance of doubt and for purposes of determining whether any adjustments are required pursuant to the terms of Section 1.12(b), no effect shall be given to any Obligations owing in respect of Interest Rate Agreements.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan Revolving Credit Advance owing to it or payment of any other amount under this Agreement or any of the Revolving Credit Note held by it or any other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Proportionate Share of the principal of or interest on the Loans Revolving Credit Advances or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in (or, if and to the Loans extent specified by such Lender, direct interests in) the Revolving Credit Advances or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or Proportionate Shares. Amounts received by Agent under this paragraph shall be treated as otherwise agreed a payment received by LendersBorrower under Section 1.10. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored. For the avoidance of doubt and for purposes of determining whether any adjustments are required pursuant to the terms of this Section 1.12(b), no effect shall be given to any Obligations owing in respect of Interest Rate Agreements.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this SectionSection 1.12(a), all rights of setoffset-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans Revolving Credit Advances or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 1.12 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 1.12 to share in the benefits of any recovery on such secured claim.
Appears in 3 contracts
Samples: Credit Agreement (Dicks Sporting Goods Inc), Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(bi) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any the Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset off, banker’s lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans Loan or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Borrowers to such Lender (other than pursuant to any Secured Hedge Agreements) than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the Loans extent specified by such Lender, direct interests in) the Loan or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of or as otherwise agreed by interest on the Loan or such other amounts, respectively, owing to each of Lenders. To such end end, all Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(cii) Each Borrower and Guarantor agrees Borrowers agree that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans the Loan or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(diii) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrowers. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set off to which this Section 2.15(b) applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 2.15(b) to share in the benefits of any recovery on such secured claim.
Appears in 3 contracts
Samples: Loan Agreement (Healthcare Trust, Inc.), Loan Agreement (Healthcare Trust, Inc.), Loan Agreement (Healthcare Trust, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Loan Party agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b13.4(b) and Section 6.10(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor Loan Party at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorLoan Party), in which case it shall promptly notify the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including AgentAgent or any Applicable Designee) shall obtain from any Borrower or Guarantor Loan Party payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Documents through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Loan Party to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Loan Party agrees that any Lender purchasing a participation (or direct interest) as provided in this Section 6.10 may exercise, in a manner consistent with this SectionSection 6.10, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorLoan Party. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 6.10 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 6.10 to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim either Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent Agents and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Administrative Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including either Agent) shall obtain from any Borrower or Guarantor any Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor any Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Administrative Agent, for the benefit of the applicable Lenders, the amount of such excess and simultaneously purchase from such other applicable Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders of the same category of Loans shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by the applicable Lenders. To such end all applicable Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantorany Obligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Administrative Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Ulta Beauty, Inc.), Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and between Lenders, to the provisions of Section 12.3(b) hereofthe last sentence of SECTION 1.1(f)), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currencyCurrency, against any principal of or interest on any Loans owed to of such Lender Lender's Revolving Credit Advances or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan Revolving Credit Advance owing to it or payment of any other amount under this Agreement or any of the Revolving Credit Note held by it or any other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Proportionate Share of the principal of or interest on the Loans Revolving Credit Advances or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in (or, if and to the Loans extent specified by such Lender, direct interests in) the Revolving Credit Advances or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed Proportionate Shares. Amounts received by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.paragraph shall be treated as a payment received by Borrower under SECTION
Appears in 2 contracts
Samples: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any the Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) . Each Borrower and Guarantor Lender agrees that it shall turn over to Administrative Agent (for distribution by Administrative Agent to the other Lenders in accordance with the terms of this Agreement) any Lender purchasing a participation payment (whether voluntary or direct interestinvoluntary, through the exercise of any right of setoff or otherwise) as provided on account of the Loans held by it in this Section may exercise, in a manner consistent with this Section, excess of its ratable portion of payments on account of the Loans obtained by all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Lenders. Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation Obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 14.10 applies, then such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 14.10 to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Construction Loan Agreement (Vail Resorts Inc), Construction Loan Agreement (Vail Resorts Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien Lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien Lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees thatIf any Bank shall effect payment, in addition to (and without limitation of) cash or otherwise, of any right of setoff, banker’s lien Facility Fees or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed a Loan made by it to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such the Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s lien or bankers’ lien, counterclaim or similar right or otherwise (other than from Agent as provided herein)right, and, as a result of and such payment, such Lender Bank shall have received more than its Pro Rata Share a greater percentage, in cash or otherwise, of the Facility Fees or the principal of the Loans or more than its share of such other amounts interest then due hereunder or thereunder by any Borrower or Guarantor to such Lender Bank in respect of its Loans than the percentage thereof received by any other LenderBank, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such the other Lenders a participation Banks participations in the Loans or such made by the other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) Banks in such amounts, and make such other adjustments from time to time as shall be equitable, equitable to the end that all Lenders the Banks shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares or as otherwise agreed the unpaid Facility Fees, principal and interest on the Loans held by Lenderseach of them. To such end all Lenders the Banks shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each . The Borrower and Guarantor agrees that any Lender Bank so purchasing a participation (or direct interest) as provided in the Loans made by the other Banks under this Section 5.7 may exercise, in a manner consistent with this Section, to the extent permitted by applicable law exercise all rights of setoffset-off, banker’s bankers’ lien, counterclaim or similar rights with respect to such participation as fully as if such Lender Bank were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) . Nothing contained herein shall require any Lender Bank to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender Bank to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any the Borrower. The Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shallagrees, to the fullest extent practicableit may effectively do so under applicable law, assign such rights that any holder of a participation in a Loan, whether or not acquired pursuant to Agent for the benefit of Lenders andforegoing arrangements, in any eventmay to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in respect the amount of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimparticipation.
Appears in 2 contracts
Samples: Credit Agreement (American Honda Finance Corp), Credit Agreement (American Honda Finance Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower Agent and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (J Crew Operating Corp), Loan and Security Agreement (Perry Ellis International Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative such Borrower and the Administrative Agent thereof; provided, that, provided that such Lender’s 's failure to give such -------- notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan of any Class owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share of such other amounts then due hereunder or thereunder by any such Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.Credit Agreement ----------------
Appears in 2 contracts
Samples: Credit Agreement (Mediacom Capital Corp), Credit Agreement (Mediacom LLC)
Sharing of Payments, Etc. (a) Each Borrower and each Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim any Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent Agents and Lenders, to the provisions of Section 12.3(b6.9(b) hereof), to offset balances held by it for the account of such Borrower or such Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or such Guarantor), in which case it shall promptly notify Administrative Borrower and Administrative and Collateral Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Administrative and Collateral Agent) shall obtain from any Borrower or any Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise (in accordance with the terms hereof) of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Administrative and Collateral Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or any Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Administrative and Collateral Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and each Guarantor agrees that any Lender so purchasing a participation pursuant to subsection (b) above (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or any Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent Administrative and Collateral Agent, for itself and the ratable benefit of the Lenders and the Bank Product Providers, and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans owed to such Lender or any other amount payable to such Lender hereunderunder this Agreement, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Agent thereofof such action; provided, that, that such Lender’s failure to give such notice shall not affect the validity thereofof such action.
(b) If any Lender (including Agent) shall obtain from any the Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement held by it or any of the other Financing Agreements Document or through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Agent as provided hereinin this Agreement), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereonon such Loans or other amounts, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to with the end effect that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of or interest on the Loans or such other amounts, respectively, owing to each of the Lenders; provided, that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Lenders, pro rata in accordance with their respective Pro Rata Shares Commitments in effect at the time such Loans were made (by reason of a failure of a Lender to make a Loan hereunder in the circumstances described in the last paragraph of Section 11.04), then such purchases of participations or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by the Lenders, pro rata according to the amounts of such Commitments. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lienliens, counterclaim counterclaims or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein in this Agreement shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Credit Agreement (Cheniere Energy Inc), Credit Agreement (Cheniere Energy Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans the Term Loan owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If If, except as otherwise expressly provided herein, any Lender (including Agent) shall shall, by exercising any right of setoff or counterclaim or otherwise, obtain from any Borrower or Guarantor payment in respect of any principal of or interest on any Loan owing to it of its Term Loans or participations resulting in such Lender receiving payment of any other amount under this Agreement or any a greater proportion of the other Financing Agreements through the exercise aggregate amount of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Term Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender and participations and accrued interest thereon than the percentage thereof proportion received by any other similarly situated Lender, it then the Lender receiving such greater proportion shall promptly pay purchase (for cash at face value) participations in the Term Loans of other Lenders to Agent, for the extent necessary so that the benefit of Lenders, the amount of all such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as payments shall be equitable, to the end that shared by all such Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) ratably in accordance with their respective Pro Rata Shares Shares; provided that (i) if any such participations are purchased and all or as otherwise agreed by Lenders. To any portion of the payment giving rise thereto is recovered, such end all Lenders participations shall make appropriate adjustments among themselves be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the resale Borrowers 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 sold in any of its Term Loans to any assignee or otherwise) participant, other than to the Borrowers 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 setoff and counterclaim with respect to such participation as fully as if such payment is rescinded or must otherwise be restoredLender were a direct creditor of such Borrower in the amount of such participation.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans Term Loan or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders Secured Parties and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Administrative Agent thereof; provided, that, provided that such -------- Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any the Borrower or Guarantor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.. Credit Agreement ----------------
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Credit Agreement (Mediacom LLC), Credit Agreement (Mediacom LLC)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans owed to such Lender or any other amount payable to such Lender hereunderunder this Agreement, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Administrative Agent thereofof such action; provided, that, that such Lender’s failure to give such notice shall not affect the validity thereofof such action.
(b) If any Lender (including Agent) shall obtain from any the Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the Note held by it or any other Financing Agreements Document or through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided hereinin this Agreement), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereonon such Loans or other amounts, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to with the end effect that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of or interest on the Loans or such other amounts, respectively, owing to each of the Lenders; provided, that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Lenders pro rata in accordance with their respective Pro Rata Shares Loan Commitments in effect at the time such Loans were made (by reason of a failure of a Lender to make a Loan hereunder in the circumstances described in the last paragraph of Section 11.04), then such purchases of participations or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Lenders pro rata according to the amounts of such Loan Commitments. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lienliens, counterclaim counterclaims or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein in this Agreement shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Credit Agreement (GreenHunter Energy, Inc.), Credit Agreement (GreenHunter Energy, Inc.)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (any rights now or hereafter granted under Applicable Law and without not by way of limitation of) of any right of setoffsuch rights, banker’s lien or counterclaim Agent or any Lender may otherwise havethe Agent, each Lender shall be entitledand each Participant is hereby authorized by the Borrower, at any time or from time to time while an Event of Default exists, without notice to the Borrower or to any other Person, any such notice being hereby expressly waived, but in the case of a Lender or a Participant subject to receipt of the prior written consent of the Agent exercised in its option (but subject, as among Agent and Lenderssole discretion, to the provisions 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 Section 12.3(bdeposit, whether matured or unmatured) hereof), to offset balances held by it for the account of such Borrower or Guarantor and any other indebtedness at any of its officestime held or owing by the Agent, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable affiliate of the Agent or such Lender, to such Lender hereunderor for the credit or the account of the Borrower against and on account of any of the Obligations, that is not paid when due (regardless irrespective of whether or not any or all of the Loans and all other Obligations have been declared to be, or have otherwise become, due and payable as permitted by Section 11.2., and although such balances are then due to such Borrower obligations shall be contingent or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) unmatured. If any a Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of of, or interest on on, any Loan owing to it or payment of any other amount under this Agreement or shall obtain payment on any of other Obligation owing by the Borrower or any other Financing Agreements Loan Party through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (or through voluntary prepayments directly to a Lender or other than from Agent as provided herein), and, as payments made by the Borrower or any other Loan Party to a result Lender not in accordance with the terms of this Agreement and such paymentpayment should be distributed to the Lenders in accordance with Section 3.2. or Section 11.5., such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by the other Lenders or such other amounts, respectively, owing Obligations owed to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any reasonable expenses that which may actually be incurred by such Lender in obtaining or preserving such excess paymentbenefit) in accordance with their respective Pro Rata Shares the requirements of Section 3.2. or Section 11.5., as otherwise agreed by Lendersapplicable. To such end end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each . The Borrower and Guarantor agrees that any Lender so purchasing a participation (or direct interest) as provided in this Section the Loans or other Obligations owed to such other Lenders may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lien, counterclaim or similar rights with the respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) . Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, exercise and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimBorrower.
Appears in 2 contracts
Samples: Credit Agreement (Realty Income Corp), Credit Agreement (Realty Income Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section SECTION 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor Borrowers at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrowers), in which case it shall promptly notify Administrative Borrower Agent and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Kirklands Inc), Loan and Security Agreement (Kirklands Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees Borrowers agree that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower Borrowers and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Borrowers to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees Borrowers agree that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Delta Apparel, Inc), Loan and Security Agreement (Delta Apparel Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor each Guarantor, jointly and severally agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or any Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (after the expiration of any particular grace period and regardless of whether such balances are then due to such Borrower or any Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and each Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hhgregg, Inc.), Loan and Security Agreement (HHG Distributing, LLC)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, thatthat , such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim a Lender or the Agent or any Lender may otherwise have, each Lender and the Agent shall be entitledentitled during the continuance of an Event of Default, at its option (but subjectoption, as among Agent and Lenders, in the case of any Lender subject to receipt of the provisions of Section 12.3(b) hereof)Agent's prior written consent, to offset balances held by it for the account of such the Borrower or Guarantor at any of its such Lender's (or the Agent's) offices, in dollars Dollars or in any other currency, against any principal of of, or interest on on, any of such Lender's Loans owed hereunder (or other Obligations owing to such Lender or any other amount payable to such Lender the Agent hereunder, that ) which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it such Lender shall promptly notify Administrative Borrower the Borrower, all other Lenders and the Agent thereof; provided, thathowever, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) of such offset. If any a Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of of, or interest on, any Loan made by it to the Borrower under this Agreement, or shall obtain payment on any Loan other Obligation owing to it by the Borrower or payment of any other amount under this Agreement or any of the other Financing Agreements a Subsidiary through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (or through voluntary prepayments directly to a Lender or other than from Agent as provided herein), andpayments made by the Borrower to a Lender not in accordance with the terms of this Agreement and such payment should be distributed to the Lenders pro rata in accordance with Section 3.2. or Section 11.4., as a result of such paymentapplicable, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay such amounts to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any reasonable expenses that which may be incurred by such Lender in obtaining or preserving such excess paymentbenefit) pro rata in accordance with their respective Pro Rata Shares Section 3.2. or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 2 contracts
Samples: Credit Agreement (Captec Net Lease Realty Inc), Credit Agreement (Captec Net Lease Realty Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor the Company payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater Credit Agreement 47 - 43 - percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by LendersLetter of Credit Liabilities or such other amounts, respectively, owing to each of the Lender. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Company. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.. Credit Agreement
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders, provided that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Lenders pro rata in accordance with their respective Pro Rata Shares Commitments in effect at the time such Loans were made (whether by reason of a failure of a Lender to make a Loan hereunder or otherwise), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Lenders pro rata according to the amounts of such Commitments. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that that, to the extent permitted by law, any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.. Credit Agreement
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorof the Obligors. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Thai Romo LTD)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
(e) In the event that at any time after the date hereof a Lender shall also be acting as Servicer pursuant to the terms hereof, nothing contained herein shall be construed to require such Lender to share with any other Lender any fees received by such Lender in its capacity as Servicer hereunder from any Transaction Party. In addition, nothing contained herein shall be construed to require that a Lender who has purchased any accounts receivable owing by WestPoint to a third party share any payments received by such Lender in respect of such accounts receivable with any other Lender pursuant to the terms of this Section 6.10.
Appears in 1 contract
Samples: Loan and Security Agreement (Westpoint Stevens Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders, provided that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Lenders pro rata in accordance with their respective Pro Rata Shares Commitments in effect at the time such Loans were made (whether by reason of a failure of a Lender to make a Loan hereunder or otherwise), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Lenders pro rata according to the amounts of such Commitments. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.. Credit Agreement
(c) Each Borrower and Guarantor Obligor agrees that that, to the extent permitted by law, any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorof the Obligors. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to Advance made by it under this Agreement or payment of any other amount obligation under this Agreement the Loan Documents then owed by the Borrower, any other Obligated Party or any of the other Financing Agreements LC Account Party to such Lender, whether voluntary, involuntary, through the exercise of any right of setoffset-off, banker’s lien or 's lien, counterclaim or similar right right, or otherwise otherwise, in excess of its pro rata share (calculated (i) pursuant to Section 4.4 in respect of letter of credit fees, and (ii) for all other than from Agent as provided hereinof the Obligations on the basis of the unpaid principal of and interest on the Revolving Credit Loan, the Term Loan and LC Participations held by it), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such the other Lenders a participation participations in the Loans or such other amounts, respectively, owing Obligations owed to such other Lenders (or such interest due thereon, as the case may be) them hereunder in such amounts, and make such other adjustments from time to time as shall be equitable, necessary to the end that all Lenders shall cause such purchasing Lender to share the benefit of such excess payment (net ratably with each of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) the other Lenders in accordance with their respective Pro Rata Shares or as otherwise agreed by Lendersits pro rata portion thereof. To such end end, all of the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if all or any portion of such excess payment is thereafter rescinded or must otherwise be restored.
(c) Each . The Borrower and Guarantor agrees agrees, to the fullest extent it may effectively do so under applicable law, that any Lender so purchasing a participation (or direct interest) as provided in this Section the Advances and LC Participations made by the other Lenders may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim counterclaim, or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans Advances to, or other amounts (as Letter of Credit Disbursements for the case may be) owing to such Lender account of, the Borrower in the amount of such participation.
(d) . Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claimBorrower.
Appears in 1 contract
Samples: Credit Agreement (Schlotzskys Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such -------- Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of any Class or more than its share Letter of such Credit Liabilities or any other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Premier Parks Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim any Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b6.9(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower Borrowers and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) Agent and Lenders agree that no Lender shall, except upon the prior written consent of Agent, exercise any right of setoff, banker’s lien or counterclaim such Lender may have with respect to any property held by such Lender for the account of any Borrower. If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise (in accordance with the terms hereof) of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any such Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing a participation pursuant to subsection (b) above (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim. *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, upon the occurrence and during the continuance of an Event of Default, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans the Loan owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower Representative and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any the Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans Loan or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans portion of the Loan or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any reasonable expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans Loan or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (International Wire Group Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Loan Party agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim the Agent or any Lender may otherwise have, each Lender and each of its Affiliates shall be entitled, at its option (but subject, as among the Agent and the Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor Loan Party at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorLoan Party), in which case it shall promptly notify Administrative Borrower the Company and the Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including the Agent) shall obtain from any Borrower or Guarantor Loan Party payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Loan Party to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to the Agent, for the benefit of the Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by the Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Loan Party agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorLoan Party. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to the Agent for the benefit of the Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Abl Loan and Security Agreement (U.S. Silica Holdings, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such -------- Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or --- ---- interest on the Loans of such Class or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Applied Business Telecommunications)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim any Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantora Borrower), in which case it shall promptly notify Administrative Borrower Huffy and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, or any other amount payable to such Lender hereunder, that which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Administrative Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(bi) If At any time and from time to time prior to the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing of any Class and Series (other than any Swingline Loan) made by it to it the Borrower under this Agreement or payment of any other amount relating to the Loans or Commitments of such Class and Series under this Agreement or any other Credit Document or payment in respect of the other Financing Agreements its participations in LC Disbursements and Swingline Loans through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share Commitments of such Class and Series or such other amounts relating to the Loans of such Class and Series or payment in respect of its participations in LC Disbursements and Swingline Loans then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other LenderLenders, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or of such other amounts, respectively, owing to Class and Series made by such other Lenders (or such in interest due thereon, as the case may be) or such other amounts relating to the Loans or Commitments of such Class and Series or in LC Disbursements and Swingline Loans, respectively, in such amounts, amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal and/or interest on the Loans of such Class and Series held by each of the Lenders or as otherwise agreed by such other amounts relating to the Loans or Commitments of such Class and Series or payment in respect of its participations in LC Disbursements and Swingline Loans owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored. CREDIT AGREEMENT
(ii) At any time from and after the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Lender shall obtain payment of any principal of or interest on any Loan (other than any Swingline Loan) made by it to the Borrower under this Agreement or payment in respect of its participations in LC Disbursements and Swingline Loans or payment of any other amount under this Agreement or any other Credit Document through the exercise of any right of set-off, banker's lien or counterclaim or similar right or otherwise, and, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on the Loans or payments in respect of its participations in LC Disbursements and Swingline Loans or such other amounts then due hereunder by the Borrower to such Lender than the percentage received by any other Lenders, it shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by such other Lenders (or in interest due thereon, as the case may be) or LC Disbursements and Swingline Loans or such other amounts, respectively, in such amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal and/or interest on the Loans held by each of the Lenders or payments in respect of its participations in LC Disbursements and Swingline Loans owing to each of the Lenders or such other amounts owing to each of the Lenders. To such end all the 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.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing a participation (or direct interest) in the Loans made by other Lenders (or in interest due thereon, as provided the case may be) or payments in this Section respect of its participations in LC Disbursements and Swingline Loans may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder creditor of Loans or other amounts (as the case may be) owing to such Lender Borrower in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b12.13(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower the Borrowers and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Jazz Technologies, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent, Term Loan Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent, Term Loan Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent or Term Loan Agent thereof, as applicable; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent and the Term Loan Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than the amount of its Pro Rata Share of the principal of the Loans to which it is entitled under Section 6.4 or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received hereunder to which it is entitled under Section 6.4 by any other LenderBorrower, it shall promptly pay to Agent, for the benefit of Revolving Lenders, or Term Loan Agent, for the benefit of Term Lenders, as the case may be, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Remy International, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any Lender a Bank may otherwise have, each Lender Bank shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Bank’s Loans, Reimbursement Obligations, Acceptance Liabilities or any other amount payable to such Lender Bank hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify Administrative Borrower the Company and the Agent thereof; provided, that, provided that such LenderBank’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) Bank shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan Loan, Acceptance Liabilities or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender Bank shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share Letter of Credit Liabilities, Acceptance Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender Bank than the percentage thereof received by any other LenderBank of the principal of or interest on the Loans or Letter of Credit Liabilities, Acceptance Liabilities or such other amounts then due hereunder or thereunder by such Obligor to such other Bank, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation Banks participations in (or, if and to the extent specified by such Bank, direct interests in) the Loans or Letter of Credit Liabilities, Acceptance Liabilities or such other amounts, respectively, owing to such other Lenders Banks (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders the Banks shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender Bank in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares or as otherwise agreed by Lendersthe unpaid principal of and/or interest on the Loans, Acceptance Liabilities, Letter of Credit Liabilities and such other amounts, respectively, owing to each of the Banks. To such end all Lenders the Banks shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender Bank so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender Bank were a direct holder of Loans or other amounts (as the case may be) owing to such Lender Bank in the amount of such participation.
(d) Nothing contained herein shall require any Lender Bank to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender Bank to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender Bank receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender Bank shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders the Banks entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and with the prior written consent of the Majority Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Xxxxxx's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify Administrative Borrower the Company and the Agent thereof; provided, that, PROVIDED that such Lender’s Xxxxxx's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s Xxxxxx's lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim a Lender or the Administrative Agent or any Lender may otherwise have, each Lender and the Administrative Agent shall be entitled, upon the occurrence and during the continuation of a Default or an Event of Default, at its option (but subject, as among Agent and Lenders, to in the provisions case of Section 12.3(b) hereof)any Lender only with the prior written consent of the Administrative Agent, to offset balances held by it for the account of such the Borrower or Guarantor at any of its such Lender's (or the Administrative Agent's) offices, in dollars Dollars or in any other currency, against any principal of of, or interest on on, any Loans owed of such Lender's portion of the Loan hereunder (or other Obligations owing to such Lender or any other amount payable to such Lender the Administrative Agent hereunder, that ) which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it such Lender shall promptly notify the Borrower, all other Lenders and the Administrative Borrower and Agent thereof; provided, thathowever, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) of such offset. If any a Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of of, or interest on, the portion of the Loan made by it to the Borrower under this Agreement, or shall obtain payment on any Loan other Obligation owing to it or payment of any other amount under this Agreement or any of by the other Financing Agreements Borrower through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as or through voluntary prepayments directly to a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.payments
Appears in 1 contract
Samples: Term Loan Agreement (Federal Realty Investment Trust)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; providedPROVIDED, thatTHAT, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any the Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans Loan or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans portion of the Loan or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans the Loan or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it or any of its affiliates for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or GuarantorObligor), in which case it shall promptly notify Administrative Borrower such Obligor and the Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Reimbursement Obligation owing to it or payment of any other amount under this Agreement or any of the Note held by it or any other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share of Reimbursement Obligations or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other LenderLenders, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously Credit Agreement purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Reimbursement Obligations or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans of such Class or such other amounts, respectively, owing to each of the Lenders, provided that if at the time of such payment the outstanding principal amount of the Loans of any Class shall not be held by the Lenders pro rata in accordance with their respective Pro Rata Shares or relevant Commitments of such Class in effect at the time such Loans were made (by reason of a failure of a Lender to make a Loan hereunder in the circumstances described in the last paragraph of Section 12.04 hereof), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Lenders pro rata according to the amounts of such Commitments. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participationparticipation (or direct interest).
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.. Credit Agreement
Appears in 1 contract
Samples: Third Amended and Restated Credit Agreement (Sinclair Broadcast Group Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan under any Facility or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Credit Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans under such Facility or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans under such Facility or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans under such Facility or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any Lender a Bank may otherwise have, each Lender Bank shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the CREDIT AGREEMENT ---------------- account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Bank's Loans, or any other amount payable to such Lender Bank hereunder, that which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Agent thereof; provided, that, PROVIDED that such Lender’s Bank's failure to give such notice shall not affect the validity thereof.
(bi) If At any Lender (including Agent) time and from time to time prior to the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Bank shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing of any Class and Series made by it to it the Borrower under this Agreement or payment of any other amount relating to the Loans or Commitments of such Class and Series under this Agreement or any of the other Financing Agreements Credit Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender Bank shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share Commitments of such Class and Series or such other amounts relating to the Loans of such Class and Series then due hereunder or thereunder by any the Borrower or Guarantor to such Lender Bank than the percentage thereof received by any other LenderBanks, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation Banks participations in (or, if and to the extent specified by such Bank, direct interests in) the Loans or of such Class and Series made by such other amounts, respectively, owing to such other Lenders Banks (or such in interest due thereon, as the case may be) or such other amounts relating to the Loans or Commitments of such Class and Series, respectively, in such amounts, amounts and make such other adjustments from time to time as shall be equitable, to the end that all Lenders the Banks shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender Bank in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal and/or interest on the Loans of such Class and Series held by each of the Banks or as otherwise agreed by Lenderssuch other amounts relating to the Loans or Commitments of such Class and Series owing to each of the Banks. To such end all Lenders the Banks shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(ii) At any time from and after the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Bank shall obtain payment of any principal of or interest on any Loan made by it to the Borrower under this Agreement or payment of any other amount CREDIT AGREEMENT ---------------- under this Agreement or any other Credit Document through the exercise of any right of set-off, banker's lien or counterclaim or similar right or otherwise, and, as a result of such payment, such Bank shall have received a greater percentage of the principal of or interest on the Loans or such other amounts then due hereunder by the Borrower to such Bank than the percentage received by any other Banks, it shall promptly purchase from such other Banks participations in (or, if and to the extent specified by such Bank, direct interests in) the Loans made by such other Banks (or in interest due thereon, as the case may be) or such other amounts, respectively, in such amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Banks shall share the benefit of such excess payment (net of any expenses which may be incurred by such Bank in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal and/or interest on the Loans held by each of the Banks or such other amounts owing to each of the Banks. To such end all the Banks shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each The Borrower and Guarantor agrees that any Lender Bank so purchasing a participation (or direct interest) in the Loans made by other Banks (or in interest due thereon, as provided in this Section the case may exercise, in a manner consistent with this Section, be) may exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender Bank were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender Bank to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender Bank to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender Bank receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender Bank shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders the Banks entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s =s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Revolving Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower Agent and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Revolving Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Revolving Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Revolving Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor the Company payment of any principal of or interest on any Loan or Letter of Credit Liability of any Class owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share Letter of Credit Liabilities of such Class or such other amounts then due hereunder or thereunder by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or Letter of Credit Liabilities of such Class or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by LendersLetter of Credit Liabilities of such Class or such other amounts, respectively, owing to each of the Lender. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Company. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan under any Facility or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Credit Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans under such Facility or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans under such Facility or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans under such Facility or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make CREDIT AGREEMENT appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and with the prior written consent of the Majority Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Facility C Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify Administrative Borrower the Company and the Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Facility C Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s Lender's lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Facility C Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor CREDIT AGREEMENT 29 such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Facility C Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Facility C Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Facility C Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of any Class or more than its share Letter of such Credit Liabilities or any other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by Credit Agreement the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Premier Parks Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim any Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b6.9(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower Borrowers and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) Agent and Lenders agree that no Lender shall, except upon the prior written consent of Agent, exercise any right of setoff, banker’s lien or counterclaim such Lender may have with respect to any property held by such Lender for the account of any Borrower. If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise (in accordance with the terms hereof) of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any such Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing a participation pursuant to subsection (b) above (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders (or the Revolving Loan A Lenders, Revolving A-1 Lenders, the Term Loan B Lenders or the Term Loan B-1 Lenders, as applicable) shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Spirit Realty Capital, Inc.)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees Borrowers agree that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim any Administrative Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Administrative Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantora Borrower), in which case it shall promptly notify Borrower Agent and Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Administrative Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Administrative Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Administrative Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Bell Microproducts Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims counterclaim or similar rights right or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Revolving Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Revolving Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Revolving Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Revolving Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Revolving Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative US Borrower and Agent thereof; provided, that, (i) such Lender’s 's failure to give such notice shall not affect the validity thereofthereof and (ii) the balances of a Canadian Borrower shall not be offset against interest or principal owed by US Borrower or any Guarantor.
(b) If any US Lender (including Agent) shall obtain from any US Borrower or any Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans made to US Borrower or more than its share of such other amounts then due hereunder or thereunder by any US Borrower or any Guarantor to such US Lender than the percentage thereof received by any other US Lender, it shall promptly pay to Agent, for the benefit of US Lenders, the amount of such excess and simultaneously purchase from such other US Lenders a participation in the Loans made to the US Borrower or such other amounts, respectively, owing to such other US Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all US Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such US Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by US Lenders. To such end all US Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each US Borrower and each Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim any Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b6.9(b) hereof), to offset balances held by it for the account of such any Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorany Borrower), in which case it shall promptly notify Administrative Borrower Borrowers and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any such Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing a participation pursuant to subsection (b) above (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitledentitled (after consultation with the Administrative Agent), at its option (but subjectoption, as among Agent and Lenders, to during the provisions existence of Section 12.3(b) hereof)an Event of Default, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or Bankers' Acceptances, or any other amount payable to such Lender hereunder, that hereunder which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it such Lender shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing or reimbursement on any Bankers' Acceptance made available to it or payment of any other amount the Company under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of the Loans or more than its share of such other amounts interest or reimbursement obligation then due hereunder or thereunder by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other LenderLenders, it such Lender shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to Bankers' Acceptances made by such other Lenders (or such in interest due thereon, as the case may be) in such amounts), and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the aggregate unpaid principal and interest on the Loans and reimbursement obligations on the Bankers' Acceptances held or as otherwise agreed accepted by each of the Lenders. To such end end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwiseother-wise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor . The Company agrees that any Lender so purchasing a participation (or direct interest) in the Loans or Bankers' Acceptances made by other Lenders (or in interest due thereon, as provided in this Section the case may exercise, in a manner consistent with this Section, be) may exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim counter-claim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (acceptor of Bankers' Acceptances, as the case may be) owing to such Lender , in the amount of such participation.
(d) . Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Company. If, If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.05 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.05 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Ocean Energy Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitledentitled (after consultation with the Administrative Agent), at its option (but subjectoption, as among Agent and Lenders, to during the provisions existence of Section 12.3(b) hereof)an Event of Default, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that hereunder or under any other Loan Document which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it such Lender shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing made by it to it the Company under this Agreement or payment of any other amount reimbursement obligation under this a Letter of Credit Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of the Loans or more than its share of such other amounts interest or reimbursement obligation then due hereunder or thereunder under the respective Letter of Credit Agreement, as the case may be, by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other LenderLenders, it such Lender shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to made by such other Lenders (or such in interest due thereon, as the case may be) or reimbursement obligations under the Letter of Credit Agreements in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal and/or interest on the Loans held by each of the Lenders or as otherwise agreed by pro rata in accordance with the unpaid reimbursement obligation owed to each of the Lenders. To such end end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders, provided that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Lenders pro rata in accordance with their respective Pro Rata Shares Commitments in effect at the time such Loans were made (whether by reason of a failure of a Lender to make a Loan hereunder or otherwise), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Lenders pro rata according to the amounts of such Commitments. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that that, to the extent permitted by law, any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorof the Obligors. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees Borrowers agree that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor Borrowers at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower Borrowers' Agent and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not -------- ---- affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Borrowers to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees Borrowers agree that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof) in accordance with the terms hereof and of the other Financing Agreements (including that it shall only exercise such rights at any time an Event of Default exists or shall have occurred and be continuing), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicablepracticable and permitted under applicable law, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify Administrative Borrower the Company and the Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans Loans, Letter of Credit Liabilities or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the Loans extent specified by such Lender, direct interests in) the Loans, Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans, Letter of Credit Liabilities or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Loan Party agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien Lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) 10.4 hereof), to offset balances held by it for the account of such Borrower or Guarantor Loan Party at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorLoan Party), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such LenderXxxxxx’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Loan Party payment of any principal of or interest on any Term Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Documents through the exercise of any right of setoff, banker’s lien Lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Term Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Loan Party to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders; provided, that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this paragraph shall not be construed to apply to (A) any payment made by a Loan Party pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender)), (B) reserved, or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans to any assignee or participant, other than to any Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Loan Party agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lienLien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lienLien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorLoan Party. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b13.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than of its Pro Rata Share of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or Shares. Amounts received by Agent under this Section 7.5(b) hereof shall be treated as otherwise agreed by Lendersa payment received from Borrower under Section 7.5(b) hereof. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor of the Obligors agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any Lender a Bank may otherwise have, each Lender Bank shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor Obligor at any of its offices, in dollars US Dollars or in any other currency, currency against any principal of or interest on any Loans owed to of such Lender Bank’s Loans, Reimbursement Obligations or any other amount payable to such Lender Bank hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor (through the Borrower) and the Administrative Borrower and Agent thereof; provided, that, provided that such LenderBank’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) Bank shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender Bank shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans Loans, Letter of Credit Liabilities or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender Bank than the percentage thereof received by any other LenderBank, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation Banks participations in (or, if and to the Loans extent specified by such Bank, direct interests in) the Loans, Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders Banks (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders the Banks shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender Bank in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal of and/or interest on the Loans, Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Banks, provided that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Banks pro rata in accordance with their respective Pro Rata Shares Commitments in effect at the time such Loans were made (whether by reason of a failure of a Bank to make a Loan hereunder in the circumstances described in the second paragraph of Section 12.04 hereof or otherwise), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed shall result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Banks pro rata according to the amounts of such Commitments. To such end all Lenders the Banks shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees The Obligors agree that any Lender Bank so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender Bank were a direct holder of Loans or other amounts (as the case may be) owing to such Lender Bank in the amount of such participation.
(d) Nothing contained herein shall require any Lender Bank to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender Bank to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender Bank receives a secured claim in lieu of a setoff set-off to which this Section 4.08 applies, such Lender Bank shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders the Banks entitled under this Section 4.08 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.. Credit Agreement 71 - 66 -
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees The Obligors agree that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and with the prior written consent of the Majority Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Facility C Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify Administrative Borrower the Company and the Agent thereof; provided, that, PROVIDED that such Lender’s Xxxxxx's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Facility C Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s Xxxxxx's lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Facility C Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Facility C Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Facility C Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Facility C Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; providedPROVIDED, thatTHAT, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees The Lenders agree among themselves that, in addition the event that any Lender shall obtain payment in respect of any Loan, LOC Obligations or any other obligation owing to (and without limitation of) any such Lender under this Agreement through the exercise of a right of setoff, banker’s 's lien or counterclaim Agent counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any Lender may otherwise haveapplicable bankruptcy, each Lender shall be entitledinsolvency or other similar law or otherwise, at or by any other means, in excess of its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account pro rata share of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such paymentfor in this Agreement, such Lender shall have received more than its Pro Rata Share of promptly purchase from the principal of the Loans or more than its share of other Lenders a Participation Interest in such Loans, LOC Obligations and other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, Obligations so that the amount of such excess and simultaneously purchase from such other the Obligations held by each of the Lenders a participation in the Loans or such other amounts, respectively, owing shall continue to such other Lenders (or such interest due thereon, as the case may be) in such amounts, equal their respective Pro Rata Shares and make such other adjustments from time to time time, as shall be equitable, equitable to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or ratable shares as otherwise agreed by Lendersprovided for in this Agreement. To such end all The Lenders shall make appropriate adjustments further agree among themselves (that if payment to a Lender obtained by such Lender through the resale exercise of participation sold a right of setoff, banker's lien, counterclaim or otherwise) if such payment is other event as aforesaid shall be rescinded or must otherwise be restored.
(c) Each , the other Lenders who shared in the benefit of such payment shall similarly arrange their interests in the Obligations to reverse the distribution to them as to allow the originally remitting Lender to refund such payment. The Borrower and Guarantor agrees that any Lender so purchasing a participation (or direct interest) as provided share in the Obligations contemplated in this Section may exercise9.8 may, in a manner consistent with this Sectionto the fullest extent permitted by law, exercise all rights of payment, including setoff, banker’s lien's lien or counterclaim, counterclaim or similar rights with respect to such participation share in the Obligations as fully as if such Lender were a direct holder of Loans such Loan, LOC Obligations or other amounts (obligation in such amount. Except as otherwise expressly provided in this Agreement, if any Lender or the case may be) owing Agent shall fail to remit to the Agent or any other Lender an amount payable by such Lender in or the Agent to the Agent or such other Lender pursuant to this Agreement on the date when such amount of is due, such participation.
(d) Nothing contained herein payments shall require any be made together with interest thereon for each date from the date such amount is due until the date such amount is paid to the Agent or such other Lender at a rate per annum equal to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorFederal Funds Rate. If, If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 9.8 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 9.8 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the -42- credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such -------- Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of any Class or more than its share Letter of such Credit Liabilities or any other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Premier Parks Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans owed to such Lender Borrower or any other amount payable by such Borrower to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative such Borrower and the Administrative Agent thereof; provided, that, provided that such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any a Borrower or Guarantor payment of any principal of or interest on any Syndicated Loan owing to it such Lender or payment of any other amount owing under this Agreement or any (other than in respect of the other Financing Agreements Money Market Loans) through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Syndicated Loans or more than its share of such other amounts then due hereunder or thereunder by any from such Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored. This Section 4.07(b) shall not apply to a payment to a Non-Extending Lender pursuant to Section 2.12(b) hereof.
(c) Each The Borrower and Guarantor obligated in respect of such Loans or other amounts agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantora Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. 21
(a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances deposit or other indebtedness are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor the Company payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Credit Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participationparticipation (or direct interest).
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Company. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars US Dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, or any other amount payable to such Lender hereunder, that which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(bi) If At any time and from time to time prior to the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing of any Class and Series (other than any Swingline Loan) made by it to it the Borrower under this Agreement or payment of any other amount relating to the Loans or Commitments of such Class and Series under this Agreement or any other Credit Document or payment in respect of the other Financing Agreements its participations in LC Disbursements and Swingline Loans through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share Commitments of such Class and Series or such other amounts relating to the Loans of such Class and Series or payment in respect of its participations in LC Disbursements and Swingline Loans then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other LenderLenders, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or of such other amounts, respectively, owing to Class and Series made by such other Lenders (or such in interest due thereon, as the case may be) or such other amounts relating to the Loans or Commitments of such Class and Series or in LC Disbursements and Swingline Loans, respectively, in such amounts, amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal and/or interest on the Loans of such Class and Series held by each of the Lenders or as otherwise agreed by such other amounts relating to the Loans or Commitments of such Class and Series or payment in respect of its participations in LC Disbursements and Swingline Loans owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(ii) At any time from and after the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Lender shall obtain payment of any principal of or interest on any Loan (other than any Swingline Loan) made by it to the Borrower under this Agreement or payment in respect of its participations in LC Disbursements and Swingline Loans or payment of any other amount under this Agreement or any other Credit Document through the exercise of any right of set-off, banker's lien or counterclaim or similar right or otherwise, and, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on the Loans or payments in respect of its participations in LC Disbursements and Swingline Loans or such other amounts then due hereunder by the Borrower to such Lender than the percentage received by any other Lenders, it shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by such other Lenders (or in interest due thereon, as the case may be) or LC Disbursements and Swingline Loans or such other amounts, respectively, in such amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal and/or interest on the Loans held by each of the Lenders or payments in respect of its participations in LC Disbursements and Swingline Loans owing to each of the Lenders or such other amounts owing to each of the Lenders. To such end all the 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.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing a participation (or direct interest) in the Loans made by other Lenders (or in interest due thereon, as provided the case may be) or payments in this Section respect of its participations in LC Disbursements and Swingline Loans may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder creditor of Loans or other amounts (as the case may be) owing to such Lender Borrower in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due due, after giving effect to any applicable grace periods (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and the Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share Commitment Percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other LenderBorrower, it shall promptly pay to Agent, for notify the benefit of Lenders, the amount Agent of such excess payment and simultaneously promptly purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) prorata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders, provided that if at the time of such payment the outstanding principal amount of the Loans shall not be held by the Lenders prorata in accordance with their respective Pro Rata Shares or Commitment Percentages in effect at the time such Loans were made (by reason of a failure of a Lender to make a Loan hereunder in the circumstances described in the last paragraph of Section 13.8 hereof), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable, in the outstanding principal amount of the Loans being held by Lendersthe Lenders prorata according to each Lender's Commitment Percentage. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 2.11 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 2.11 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Satellink Communications Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and between Lenders, to the provisions of the last sentence of Section 12.3(b) hereof1.1(f)), to offset balances -------------- held by it for the account of such Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender's pro rata portion of the Revolving Credit Loan (including any Revolving Credit Advances deemed made by such Lender under Section 1.14(b)) or any other amount --------------- payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, that such Lender’s 's failure to give -------- such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any the Revolving Credit Loan owing to it or payment of any other amount under this Agreement or any of the Revolving Credit Note held by it, or any other Financing Agreements Loan Document through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans Revolving Credit Loan or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in (or, if and to the Loans extent specified by such Lender, direct interests in) the Revolving Credit Loan or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Revolving Credit Loan or such other amounts, respectively, owing to each Lender. Amounts received by Agent under this Section 1.13(b) shall be --------------- treated as otherwise agreed a payment by LendersBorrower under Section 1.9. To such end all Lenders ----------- shall make appropriate adjustments among themselves (by the resale of any participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this SectionSection 1.13(a), --------------- all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans the Revolving Credit Loan or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights as against Borrower as described in this Section 1.13 or shall affect the ------------ right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff or right as against Borrower to which this Section 1.13 applies, such Lender shall, to the extent practicable, ------------ assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 1.13 to share in the benefits ------------ of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Seven Up Rc Bottling Company of Southern California Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any the Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset--off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) . Each Borrower and Guarantor Lender agrees that it shall turn over to Administrative Agent (for distribution by Administrative Agent to the other Lenders in accordance with the terms of this Agreement) any Lender purchasing a participation payment (whether voluntary or direct interestinvoluntary, through the exercise of any right of setoff or otherwise) as provided on account of the Loans held by it in this Section may exercise, in a manner consistent with this Section, excess of its ratable portion of payments on account of the Loans obtained by all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Lenders. Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation Obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set--off to which this Section 14.10 applies, then such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 14.10 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. CREDIT AGREEMENT
(a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor the Company payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by LendersLetter of Credit Liabilities or such other amounts, respectively, owing to each of the Lender. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Company. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.. CREDIT AGREEMENT
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and ------------------------ without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may might otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent upon the occurrence and Lenders, to during the provisions continuance of Section 12.3(b) hereof)an Event of Default, to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that which is not paid when due subject to any applicable grace periods (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice notify shall not affect the validity thereof.
(ba) If any Lender (including Agenti) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing made by it to it or payment of any other amount Borrower under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, whether or not under Section 2.6 above, and, as a result of such ----------- payment, such Lender shall have received more a greater percentage of the Obligations with respect to the Loans then due hereunder by Borrower to such Lender than the percentage of the Obligations received by the other Lender, or (ii) such Lender's percentage of the outstanding Obligations relating to Loans is less than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other LenderObligations, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation Lender participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or made by such other amounts, respectively, owing Lender (or in interest due thereon or other Obligations with respect to the Loans due to such other Lenders (or such interest due thereonLender, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that (x) each Lender shall have made advances of Obligations relating to Loans according to its Pro Rata Share of its Commitment of such Obligations, and (y) all of Lenders shall share the benefit of such excess payment (net of any expenses that expense which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares or as otherwise agreed by the unpaid Obligations with respect to the Loans due to each of Lenders. To such end all All Lenders shall accordingly make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(cb) Each Borrower and Guarantor agrees that any Lender so purchasing a participation (or direct interest) in the Obligations with respect to the Loans due to the other Lender (or in interest due thereon, as provided in this Section the case may exercise, in a manner consistent with this Section, be) may exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(dc) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff payment or set-off to which this Section 2.6 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, ----------- exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 2.6 to share in the benefits ----------- of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Material Sciences Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due or within any applicable grace period with respect thereto (if any) as set forth in this Agreement (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s 's lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any unpaid Loans owed to such Lender or any other unpaid amount payable to such Lender hereunder, that is not paid when due hereunder (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than of its Pro Rata Share of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or Shares. Amounts received by Agent under this Section 6.7(b) hereof shall be treated as otherwise agreed by Lendersa payment received from Borrower. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this SectionSection 6.7, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 6.7 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 6.7 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and each Guarantor agrees agree that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or such Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or such Guarantor), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or any Guarantor payment of any principal of or interest on any Loan owing Loans owed to it such Lender or payment of any other amount payable under this Agreement or Agreement, any of the other Financing Agreements or the Pegasus Guaranty through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or any Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of the Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by the Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and each Guarantor agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or any Guarantor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of the Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Second Lien Letter of Credit, Loan and Security Agreement (Lighting Science Group Corp)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such the Borrower or Guarantor at any of its offices, in dollars or in any other currencyDollars, against any principal of or interest on any Loans owed to such Lender Lender’s Loan or any other amount payable by the Borrower to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Administrative Agent thereof; provided, that, provided that such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any the Borrower or Guarantor payment of any principal of or interest on any the Loan owing to it such Lender or payment of any other amount owing under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of the Loans or more than its share of interest on such Loan or such other amounts then due hereunder or thereunder by any from the Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans or as otherwise agreed by such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Credit Party agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Administrative Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Administrative Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor Credit Party at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorCredit Party), in which case it shall promptly notify Administrative Borrower and Administrative Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Administrative Agent) shall obtain from any Borrower or Guarantor Credit Party payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Credit Party to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Administrative Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Credit Party agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorCredit Party. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Administrative Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Loan Party agrees that, in addition to (and without limitation of) any right of setoff, banker’s lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof), to offset balances held by it for the account of such Borrower or Guarantor Loan Party at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorLoan Party), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Loan Party payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoff, banker’s lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor Loan Party to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or as otherwise agreed by Lenders. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Loan Party agrees that any Lender purchasing a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, all rights of setoff, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness or obligation of any Borrower or GuarantorLoan Party. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Travelcenters of America LLC)
Sharing of Payments, Etc. (a) Each The Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such the Borrower or Guarantor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, or any other amount payable to such Lender hereunder, that which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Borrower), in which case it shall promptly notify Administrative the Borrower and the Administrative Agent thereof; provided, that, PROVIDED that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(bi) If At any time and from time to time prior to the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing of any Class and Series (other than any Swingline Loan) made by it to it the Borrower under this Agreement or payment of any other amount relating to the Loans or Commitments of such Class and Series under this Agreement or any other Credit Document or payment in respect of the other Financing Agreements its participations in LC Disbursements and Swingline Loans through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans or more than its share Commitments of such Class and Series or such other amounts relating to the Loans of such Class and Series or payment in respect of its participations in LC Disbursements and Swingline Loans then due hereunder or thereunder by any the Borrower or Guarantor to such Lender than the percentage thereof received by any other LenderLenders, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or of such other amounts, respectively, owing to Class and Series made by such other Lenders (or such in interest due thereon, as the case may be) or such other amounts relating to the Loans or Commitments of such Class and Series or in LC Disbursements and Swingline Loans, respectively, in such amounts, CREDIT AGREEMENT amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal and/or interest on the Loans of such Class and Series held by each of the Lenders or as otherwise agreed by such other amounts relating to the Loans or Commitments of such Class and Series or payment in respect of its participations in LC Disbursements and Swingline Loans owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(ii) At any time from and after the time that all of the Loans are declared or become due and payable pursuant to Section 9 hereof and all of the Commitments hereunder are terminated pursuant to said Section 9, if any Lender shall obtain payment of any principal of or interest on any Loan (other than any Swingline Loan) made by it to the Borrower under this Agreement or payment in respect of its participations in LC Disbursements and Swingline Loans or payment of any other amount under this Agreement or any other Credit Document through the exercise of any right of set-off, banker's lien or counterclaim or similar right or otherwise, and, as a result of such payment, such Lender shall have received a greater percentage of the principal of or interest on the Loans or payments in respect of its participations in LC Disbursements and Swingline Loans or such other amounts then due hereunder by the Borrower to such Lender than the percentage received by any other Lenders, it shall promptly purchase from such other Lenders participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans made by such other Lenders (or in interest due thereon, as the case may be) or LC Disbursements and Swingline Loans or such other amounts, respectively, in such amounts and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with the unpaid principal and/or interest on the Loans held by each of the Lenders or payments in respect of its participations in LC Disbursements and Swingline Loans owing to each of the Lenders or such other amounts owing to each of the Lenders. To such end all the 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.
(c) Each The Borrower and Guarantor agrees that any Lender so purchasing a participation (or direct interest) in the Loans made by other Lenders (or in interest due thereon, as provided the case may be) or payments in this Section respect of its participations in LC Disbursements and Swingline Loans may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder creditor of Loans or other amounts (as the case may be) owing to such Lender Borrower in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the CREDIT AGREEMENT Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars U.S. Dollars or in any other Currency or currency, against any principal of or interest on any Loans owed to of the Loans, Reimbursement Obligations or other amounts payable by such Lender or any other amount payable Borrower to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative such Borrower and the Administrative Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Basic Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any such Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class of such Borrower or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share Credit Agreement ---------------- the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class of such Borrower or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise, together with interest, if any, required to be paid by the Lender returning such funds) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees The Borrowers agree that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Fabrene Group Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor Obligor at any of its offices, in dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorObligor), in which case it shall promptly notify Administrative the Borrower and the Administrative Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the -------- validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor either Obligor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Agent or the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Revolving Credit Pro Rata Share of the principal of or interest on the Revolving Credit Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other LenderObligor, it shall promptly pay to Agent, for notify the benefit of Lenders, the amount Administrative Agent of such excess payment and simultaneously promptly purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) prorata in accordance with the unpaid principal of and/or interest on the Loans or such other amounts, respectively, owing to each of the Lenders; provided, that if at the time of such payment the outstanding principal -------- amount of the Revolving Credit Loans shall not be held by the Lenders in accordance with their respective Revolving Credit Pro Rata Shares or in effect at the time such Loans were made (by reason of a failure of a Lender to make a Loan hereunder in the circumstances described in the last paragraph of Section 13.8 hereof), then such purchases of participations and/or direct interests shall be made in such manner as otherwise agreed will result, as nearly as is practicable in the judgment of the Administrative Agent, in the outstanding principal amount of the Revolving Credit Loans being held by Lendersthe Lenders according to each Lender's Revolving Credit Pro Rata Share. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor Obligor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantoreither Obligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 2.11 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 2.11 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Loan and Security Agreement (Pediatric Services of America Inc)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor agrees that, in addition to (and without limitation of) any right of setoff, banker’s 's lien or counterclaim Agent or any Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereof)option, to offset balances held by it for the account of such Borrower or Guarantor at any of its offices, in dollars or in any other currency, against any principal of or interest on any Loans owed to such Lender or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are then due to such Borrower or GuarantorBorrower), in which case it shall promptly notify Administrative Borrower and Agent thereof; provided, that, such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Agreement through the exercise of any right of setoff, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share of the principal of or interest on the Loans or more than its share of such other amounts then due hereunder or thereunder by any Borrower or Guarantor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation in the Loans or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) in accordance with their respective Pro Rata Shares or Shares. Amounts received by Agent under this Section 9.3 shall be treated as otherwise agreed by Lenderspayments received from Borrower under Section 9.2 hereof. To such end all Lenders shall make appropriate adjustments among themselves (by the resale of participation sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this SectionSection 9.3, all rights of setoff, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorBorrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 9.3 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of Lenders entitled under this Section 9.3 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Salant Corp)
Sharing of Payments, Etc. (a) Each Borrower and Guarantor The Company agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s bankers' lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitledentitled (after consultation with the Administrative Agent), at its option (but subjectoption, as among Agent and Lenders, to during the provisions existence of Section 12.3(b) hereof)an Event of Default, to offset balances held by it for the account of such Borrower or Guarantor the Company at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any of such Lender's Loans owed to such Lender or Bankers' Acceptances, or any other amount payable to such Lender hereunder, that hereunder which is not paid when due (regardless of whether such balances are then due to such Borrower or Guarantorthe Company), in which case it such Lender shall promptly notify the Company and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor payment of any principal of or interest on any Loan owing or reimbursement on any Bankers' Acceptance made available to it or payment of any other amount the Company under this Agreement or any of the other Financing Agreements through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from Agent as provided herein)otherwise, and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of the Loans or more than its share of such other amounts interest or reimbursement obligation then due hereunder or thereunder by any Borrower or Guarantor the Company to such Lender than the percentage thereof received by any other LenderLenders, it such Lender shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans or such other amounts, respectively, owing to Bankers' Acceptances made by such other Lenders (or such in interest due thereon, as the case may be) in such amounts), and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that which may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the aggregate unpaid principal and interest on the Loans and reimbursement obligations on the Bankers' Acceptances held or as otherwise agreed accepted by each of the Lenders. To such end end, all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor . The Company agrees that any Lender so purchasing a participation (or direct interest) in the Loans or Bankers' Acceptances made by other Lenders (or in interest due thereon, as provided in this Section the case may exercise, in a manner consistent with this Section, be) may exercise all rights of setoffset-off, banker’s bankers' lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (acceptor of Bankers' Acceptances, as the case may be) owing to such Lender , in the amount of such participation.
(d) . Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or Guarantorthe Company. If, If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.05 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.05 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Sharing of Payments, Etc. (a) Each Borrower and Guarantor Obligor agrees that, in addition to (and without limitation of) any right of setoffset-off, banker’s 's lien or counterclaim Agent or any a Lender may otherwise have, each Lender shall be entitled, at its option (but subject, as among Agent and Lenders, to the provisions of Section 12.3(b) hereoffullest extent permitted by law), to offset balances set off and apply any deposit (general or special, time or demand, provisional or final), or other indebtedness, held by it for the credit or account of such Borrower or Guarantor Obligor at any of its offices, in dollars Dollars or in any other currency, against any principal of or interest on any Loans owed to of such Lender Lender's Loans, Reimbursement Obligations or any other amount payable to such Lender hereunder, that is not paid when due (regardless of whether such balances are deposit or other indebtedness is then due to such Borrower or GuarantorObligor), in which case it shall promptly notify such Obligor and the Administrative Borrower and Agent thereof; provided, that, provided that such Lender’s 's failure to give such notice shall not affect the validity thereof.
(b) If any Lender (including Agent) shall obtain from any Borrower or Guarantor Obligor payment of any principal of or interest on any Loan of any Class or Letter of Credit Liability owing to it or payment of any other amount under this Agreement or any of the other Financing Agreements Loan Document through the exercise of any right of setoffset-off, banker’s 's lien or counterclaim or similar right or otherwise (other than from the Administrative Agent as provided herein), and, as a result of such payment, such Lender shall have received more than its Pro Rata Share a greater percentage of the principal of or interest on the Loans of such Class or more than its share Letter of Credit Liabilities or such other amounts then due hereunder or thereunder by any Borrower or Guarantor such Obligor to such Lender than the percentage thereof received by any other Lender, it shall promptly pay to Agent, for the benefit of Lenders, the amount of such excess and simultaneously Credit Agreement purchase from such other Lenders a participation participations in (or, if and to the extent specified by such Lender, direct interests in) the Loans of such Class or Letter of Credit Liabilities or such other amounts, respectively, owing to such other Lenders (or such in interest due thereon, as the case may be) in such amounts, and make such other adjustments from time to time as shall be equitable, to the end that all the Lenders shall share the benefit of such excess payment (net of any expenses that may be incurred by such Lender in obtaining or preserving such excess payment) pro rata in accordance with their respective Pro Rata Shares the unpaid principal of and/or interest on the Loans of such Class or as otherwise agreed by Letter of Credit Liabilities or such other amounts, respectively, owing to each of the Lenders. To such end all the Lenders shall make appropriate adjustments among themselves (by the resale of participation participations sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Borrower and Guarantor The Company agrees that any Lender so purchasing such a participation (or direct interest) as provided in this Section may exercise, in a manner consistent with this Section, exercise all rights of setoffset-off, banker’s 's lien, counterclaim or similar rights with respect to such participation as fully as if such Lender were a direct holder of Loans or other amounts (as the case may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any such right of setoff, banker’s lien, counterclaims or similar rights or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other Indebtedness indebtedness or obligation of any Borrower or GuarantorObligor. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff set-off to which this Section 4.07 applies, such Lender shall, to the extent practicable, assign such rights to Agent for the benefit of Lenders and, in any event, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 4.07 to share in the benefits of any recovery on such secured claim.
Appears in 1 contract
Samples: Credit Agreement (Advo Inc)