Erroneous Distribution. If all or any part of any payment or other distribution by or on behalf of Agent to any Loan Party, Lender or other Person (excluding the proceeds of the Loans made by the Lenders to the Borrowers in accordance with the terms hereof) is determined by Agent in its sole discretion to have been made in error as determined by Agent (any such payment or other distribution, an "Erroneous Distribution"), then the relevant Loan Party, Lender or other Person shall forthwith on written demand (accompanied by a reasonably detailed calculation of such Erroneous Distribution) repay to Agent the amount of such Erroneous Distribution received by such Person (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Agent may not make any such demand under this Section 15.19 from any Lender with respect to any such Erroneous Distribution unless such demand is made within 30 days of the date of receipt of such Erroneous Distribution by the applicable Lender). Any determination by Agent, in its sole discretion, that all or a portion of any payment or other distribution to a Loan Party, Lender or other Person was an Erroneous Distribution shall be conclusive absent manifest error. Each Loan Party, Lender and other potential recipient of an Erroneous Distribution hereunder waives any claim of discharge for value and any other claim of entitlement to, or in respect of, any Erroneous Distribution. The parties hereto agree that an Erroneous Distribution shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrowers or any other Loan Party, except, in each case, to the extent such Erroneous Distribution is, and solely with respect to the amount of such Erroneous Distribution that is, comprised of funds received by the Agent from a Borrower or any other Loan Party for the purpose of making such Erroneous Distribution. If, notwithstanding the foregoing, the making of an Erroneous Distribution is deemed, as a matter of law or otherwise, to pay, prepay, repay, discharge or otherwise satisfy any portion of the Obligations, such portion shall be deemed reinstated upon the sending of a notice of demand by Agent pursuant to Section 15.19 above.
Appears in 1 contract
Erroneous Distribution. If all or any part of any payment or other distribution (excluding the proceeds of the Loans made by the Lenders to the Borrowers on the Closing Date in accordance with the terms hereof) by or on behalf of Agent to any Loan Party, Lender or other Person (excluding the proceeds of the Loans made by the Lenders to the Borrowers in accordance with the terms hereof) is determined by Agent in its sole discretion to have been made in error as determined by Agent (any such payment or other distribution, an "Erroneous Distribution"), then the relevant Loan Party, Lender or other Person shall forthwith on written demand (accompanied by a reasonably detailed calculation of such Erroneous Distribution) repay to Agent the amount of such Erroneous Distribution received by such Person (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Agent may not make any such demand under this Section 15.19 from any Lender with respect to any such Erroneous Distribution unless such demand is made within 30 days of the date of receipt of such Erroneous Distribution by the applicable Lender). Any determination by Agent, in its sole discretion, that all or a portion of any payment or other distribution to a Loan Party, Lender or other Person was an Erroneous Distribution shall be conclusive absent manifest error. Each Loan Party, Lender and other potential recipient of an Erroneous Distribution hereunder waives any claim of discharge for value and any other claim of entitlement to, or in respect of, any Erroneous Distribution. The parties hereto agree that an Erroneous Distribution shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrowers or any other Loan Party, except, in each case, to the extent such Erroneous Distribution is, and solely with respect to the amount of such Erroneous Distribution that is, comprised of funds received by the Agent from a Borrower or any other Loan Party for the purpose of making such Erroneous Distribution. If, notwithstanding the foregoing, the making of an Erroneous Distribution is deemed, as a matter of law or otherwise, to pay, prepay, repay, discharge or otherwise satisfy any portion of the Obligations, such portion shall be deemed reinstated upon the sending of a notice of demand by Agent pursuant to Section 15.19 above.
Appears in 1 contract
Erroneous Distribution. (a) If all any Agent notifies a Lender or Secured Party, or any part other Person (other than any Credit Party or any Affiliate of any payment or other distribution by or a Credit Party) who has received funds on behalf of Agent to a Lender or Secured Party (any Loan such Lender, Secured Party, Lender or other Person (excluding the proceeds of the Loans made by the Lenders to the Borrowers in accordance with the terms hereofrecipient, a “Payment Recipient”) is that such Agent has determined by Agent in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from such Agent or any of its Related Parties were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to have been made in error as determined by Agent such Payment Recipient) (any such payment funds, whether received as a payment, prepayment or other distributionrepayment of principal, interest, fees, distribution or otherwise, individually and collectively, an "“Erroneous Distribution"), then Payment”) and demands the relevant Loan Party, Lender or other Person shall forthwith on written demand (accompanied by a reasonably detailed calculation return of such Erroneous DistributionPayment (or a portion thereof), such Erroneous Payment shall at all times remain the property of such Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of such Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) repay promptly, but in no event later than two (2) Business Days thereafter, return to such Agent the amount of any such Erroneous Distribution Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Person (provided, that, without limiting any other rights or remedies (whether Payment Recipient to the date such amount is repaid to such Agent in same day funds at law or in equity), the Agent may not make any such demand under this Section 15.19 from any Lender with respect to any such Erroneous Distribution unless such demand is made within 30 days greater of the date (x) a rate determined by such to represent its cost of receipt of such Erroneous Distribution by the applicable Lender). Any overnight or short-term funds (which determination by Agent, in its sole discretion, that all or a portion of any payment or other distribution to a Loan Party, Lender or other Person was an Erroneous Distribution shall be conclusive absent manifest error) and (y) a rate determined by such in accordance with banking industry rules on interbank compensation from time to time in effect. Each Loan A notice of any Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender or Secured Party (or any Payment Recipient who received such funds on its behalf), hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from any Agent (or any of its Related Parties) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by such Agent (or any of its Related Parties) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by such Agent (or any of its Related Parties), or (z) that such Lender or Secured Party, or other such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: 188 (i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from such Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and (ii) such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify such Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and other potential recipient that it is so notifying such Agent pursuant to this Section 12.15(b). For the avoidance of doubt, the failure to deliver a notice to such Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Distribution hereunder waives Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Agents to set off, net and apply any claim of discharge for value and all amounts at any other claim of entitlement totime owing to such Lender or Secured Party under any Credit Document, or in respect ofotherwise payable or distributable by any Agent to such Lender or Secured Party from any source, against any Erroneous Distribution. amount that such Agent has demanded to be returned under immediately preceding clause (a).
(d) The parties hereto agree that (x) irrespective of whether an Agent may be equitably subrogated, in the event that an Erroneous Distribution Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, such Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or other Secured Party, to the rights and interests of such Lender or other Secured Party, as the case may be) under the Credit Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrowers Borrower or any other Loan Credit Party; provided that this Section 12.15(d) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower or any other Credit Party relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by such Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from the Borrower or any other Credit Party for the purpose of making such Erroneous Payment.
(e) Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, in no event shall the occurrence of an Erroneous Payment (or the existence of any Erroneous Payment Subrogation Rights or other rights of any Agent in respect of an Erroneous Payment) result in such Agent becoming, or being deemed to be, a Lender hereunder or the holder of any Term Loans hereunder. 189 (f) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Credit Party, except, in each case, to the extent such Erroneous Distribution Payment is, and solely with respect to the amount of such Erroneous Distribution Payment that is, comprised of funds received by the any Agent from a the Borrower or any other Loan Credit Party for the purpose of making such Erroneous Distribution. Ifpaying, notwithstanding the foregoingprepaying, the making of an Erroneous Distribution is deemedrepaying, as a matter of law or otherwise, to pay, prepay, repay, discharge discharging or otherwise satisfy satisfying any portion of the Obligations, such portion shall be deemed reinstated upon the sending of a notice of demand by Agent pursuant to Section 15.19 above.
Appears in 1 contract