Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error. (b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment. (d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 5 contracts
Sources: Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (Endurant Capital Management LP), Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (TENOR CAPITAL MANAGEMENT Co., L.P.), Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (DG Capital Management, LLC)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent the Administrator notifies such Lender that such Agent the Administrator has determined in its sole discretion that any funds received by such Lender from such Agent the Administrator or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Agent the Administrator for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent the Administrator to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent the Administrator (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent the Administrator (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent the Administrator of such occurrence and, upon demand from such Agentthe Administrator, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous 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) that was received by such Lender to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Servicer hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrator shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower Borrower, Servicer or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentAffiliate thereof.
(d) Each party’s obligations under this Section 9.22 5.10 shall survive the resignation or replacement of the AgentsAdministrator or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations (or any portion thereof)) under any Transaction Document.
Appears in 5 contracts
Sources: Receivables Financing Agreement (Cincinnati Bell Inc), Receivables Financing Agreement, Receivables Financing Agreement
Erroneous Payments. (a) Each Lender (which term shall for the purposes of this and the succeeding paragraphs of this Section 7.03 include the Issuing Banks) hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 7.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Each Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount to the maximum extent permitted by law and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided, that this clause (c) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), any Obligations of the Loan Parties in each caserespect of principal and interest hereunder relative to the amount (and/or timing for payment) of the Obligations of the Loan Parties in respect of principal and interest hereunder that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, this clause (c) 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 the Administrative Agent from the any Borrower or any other Loan Party for the purpose of making such Erroneous Payment, satisfying Obligations or from the proceeds of Collateral.
(d) Each party’s obligations under this Section 9.22 7.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 5 contracts
Sources: Amendment No. 2 to the Revolving Credit Agreement (Victoria's Secret & Co.), Amended and Restated Revolving Credit Agreement (Bath & Body Works, Inc.), Revolving Credit Agreement (Bath & Body Works, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent or the Collateral Agent notifies such Lender that such the Agent or the Collateral Agent, as applicable, has determined in its sole discretion that any funds received by such Lender from such Agent a Secured Party or any of its respective Affiliates (a “Payment Recipient”) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent or the Collateral Agent, as applicable, the amount of any such Erroneous 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 that is two Business Days after the Agent or the Collateral Agent, as applicable, has demanded the return of such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent or the Collateral Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent or the Collateral Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent or the Collateral Agent, as applicable, for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent or the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error has been made (and that it is deemed to have knowledge in the case of such error at the time of receipt of such Erroneous Payment) immediately preceding clause (z)), in each case, with respect to such Erroneous Paymentpayment, prepayment or repayment; and to (ii) such Lender, or the extent permitted by applicable law, such Lender Agent or the Collateral Agent shall not assert (and shall cause any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based other recipient that receives funds on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent or the Collateral Agent of its receipt of such occurrence andpayment, upon demand from such Agentprepayment or repayment, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds details thereof (in reasonable detail) and that it is so notifying the currency so receivedAgent or the Collateral Agent pursuant to this Section 11.13(b), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Each Lender hereby authorizes the Agent or the Collateral Agent to set off, net and each other Loan Party hereby agrees that apply any and all amounts at any time owing to such Lender under any Transaction Document, or otherwise payable or distributable by the Agent or the Collateral Agent to such Lender from any source under or in connection with the Transaction Documents, against any amount due to the Agent or the Collateral Agent under immediately preceding clause (xa) in or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent or the Collateral Agent for any reason, after demand therefor by the Agent or the Collateral Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) for (and/or from any reasonPayment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Agent’s or the Collateral Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent or the Collateral Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the Agents “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent or the Collateral Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Agent, (ii) the Agent or the Collateral Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent or the Collateral Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Agent or the Collateral Agent may reflect in the applicable register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. Subject to Article XV, the Agent or the Collateral Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent or the Collateral Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent or the Collateral Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent or the Collateral Agent may be equitably subrogated, the Agent or the Collateral Agent shall be contractually subrogated to all the rights and interests of such the applicable Lender or Secured Party under the Transaction Documents with respect to such amount and each Erroneous Payment Return Deficiency (ythe “Erroneous Payment Subrogation Rights”).
(e) 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 Loan Party; party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent or Collateral Agent from the Borrower or any other Loan Party party for the purpose of making a payment in respect of the Obligations, in which case such payment shall discharge and otherwise satisfy the applicable obligation of the Borrower being so paid, prepaid or repaid in accordance with the terms of this Agreement. Notwithstanding anything to the contrary herein, in connection with any Erroneous PaymentPayment (including in connection with any subrogation related thereto), under no circumstances shall the Collateral Agent be deemed a lender-of-record.
(df) To the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations under this Section 9.22 11.13 shall survive the resignation or replacement of the AgentsAgent or the Collateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (Blue Owl Capital Corp), Loan and Servicing Agreement (Blue Owl Capital Corp), Loan and Servicing Agreement (Blue Owl Capital Corp III)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent or the Collateral Agent notifies such Lender that such the Agent or the Collateral Agent, as applicable, has determined in its sole discretion that any funds received by such Lender from such Agent a Secured Party or any of its respective Affiliates (a “Payment Recipient”) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent or the Collateral Agent, as applicable, the amount of any such Erroneous 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 that is two Business Days after the Agent or the Collateral Agent, as applicable, has demanded the return of such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent or the Collateral Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent or the Collateral Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent or the Collateral Agent, as applicable, for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent or the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent or the Collateral Agent, as applicable (or any of its their respective Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, (i) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error has been made (and that it is deemed to have knowledge in the case of such error at the time of receipt of such Erroneous Payment) immediately preceding clause (z)), in each case, with respect to such Erroneous Paymentpayment, prepayment or repayment; and to (ii) such Lender, or the extent permitted by applicable law, such Lender Agent or the Collateral Agent shall not assert (and shall cause any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based other recipient that receives funds on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent or the Collateral Agent of its receipt of such occurrence andpayment, upon demand from such Agentprepayment or repayment, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds details thereof (in reasonable detail) and that it is so notifying the currency so receivedAgent or the Collateral Agent pursuant to this Section 11.13(b), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Each Lender hereby authorizes the Agent or the Collateral Agent to set off, net and each other Loan Party hereby agrees that apply any and all amounts at any time owing to such Lender under any Transaction Document, or otherwise payable or distributable by the Agent or the Collateral Agent to such Lender from any source under or in connection with the Transaction Documents, against any amount due to the Agent or the Collateral Agent under immediately preceding clause (xa) in or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Agent or the Collateral Agent for any reason, after demand therefor by the Agent or the Collateral Agent in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) for (and/or from any reasonPayment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Agent’s or the Collateral Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its Loans (but not its Commitments) of the relevant class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent or the Collateral Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the Agents “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Agent or the Collateral Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Agent, (ii) the Agent or the Collateral Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Agent or the Collateral Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Agent or the Collateral Agent may reflect in the applicable register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. Subject to Article XV, the Agent or the Collateral Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Agent or the Collateral Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that the Agent or the Collateral Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent or the Collateral Agent may be equitably subrogated, the Agent or the Collateral Agent shall be contractually subrogated to all the rights and interests of such the applicable Lender or Secured Party under the Transaction Documents with respect to such amount and each Erroneous Payment Return Deficiency (ythe “Erroneous Payment Subrogation Rights”).
(e) 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 Loan Party; , except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent or Collateral Agent from the Borrower or any other Loan Party for the purpose of making a payment in respect of the Obligations, in which case such payment shall discharge and otherwise satisfy the applicable obligation of the Borrower being so paid, prepaid or repaid in accordance with the terms of this Agreement. Notwithstanding anything to the contrary herein, in connection with any Erroneous PaymentPayment (including in connection with any subrogation related thereto), under no circumstances shall the Collateral Agent be deemed a lender-of-record.
(df) To the extent permitted by Applicable Law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations under this Section 9.22 11.13 shall survive the resignation or replacement of the AgentsAgent or the Collateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Transaction Document.
Appears in 4 contracts
Sources: Loan and Servicing Agreement (Owl Rock Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III), Loan and Servicing Agreement (Owl Rock Capital Corp III)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 7.11 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Borrower, except, in each casecase of this clause (y), to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment.
(d) Each party’s obligations under this Section 9.22 7.11 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations Document.
(or e) For purposes of this Section 7.11, the term “Lender” includes any portion thereof)Issuing Bank.
Appears in 3 contracts
Sources: Five Year Credit Agreement (Arizona Public Service Co), Credit Agreement (Arizona Public Service Co), Credit Agreement (Arizona Public Service Co)
Erroneous Payments. (a) Each Lender Bank hereby agrees that (ix) if any the Paying Agent notifies such Lender Bank that such the Paying Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Paying Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Paying Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Paying Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Paying Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Paying Agent to any Lender Bank under this clause (a) Section 8.7 shall be conclusive, absent manifest error.
(bi) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Paying Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Paying Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Paying Agent of such occurrence and, upon demand from such the Paying Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Paying Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Paying Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cii) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Paying Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Company except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such Agent from of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCompany.
(diii) Each party’s obligations under this Section 9.22 8.7 shall survive the resignation or replacement of the AgentsPaying Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Paper.
Appears in 3 contracts
Sources: Revolving Credit Facility Agreement (Southwest Airlines Co), Revolving Credit Facility Agreement (Southwest Airlines Co), Revolving Credit Facility Agreement (Southwest Airlines Co)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentParties.
(d) Each party’s obligations This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 9.22 11 shall survive not be interpreted to increase (or accelerate the resignation due date for), or replacement have the effect of increasing (or accelerating the due date for), the Obligations of the Agents, Loan Parties relative to the termination amount (and/or timing for payment) of the Commitments or Obligations that would have been payable had such Erroneous Payment not been made by the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)Collateral Agent.
Appears in 3 contracts
Sources: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Erroneous Payments. (a) Each Lender Purchaser and Purchaser Agent hereby agrees that (ix) if any the Agent notifies such Lender Purchaser or Purchaser Agent that such the Agent has determined in its sole discretion that any funds received by such Lender Purchaser or Purchaser Agent from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Purchaser or Purchaser Agent (whether or not known to such Purchaser or Purchaser Agent), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Purchaser or Purchaser Agent shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser or Purchaser Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Purchaser or Purchaser Agent shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender Purchaser or Purchaser Agent under this clause (aSection 11.10(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Purchaser and Purchaser Agent hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Purchaser and Purchaser Agent agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Purchaser or Purchaser Agent shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser or Purchaser Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Seller Parties hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender Purchaser or Purchaser Agent that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender Purchaser or Purchaser Agent with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Recourse Obligation owed by the Borrower Seller Parties; provided that this Section 11.10(c) shall not be interpreted to increase (or any other Loan Partyaccelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Recourse Obligations of the Seller Parties relative to the amount (and/or timing for payment) of the Recourse Obligations that would have been payable had such erroneous Payment not been made by the Agent; exceptprovided, in each casefurther that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party Seller for the purpose of making such Erroneous erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.10 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Purchaser or Purchaser Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Recourse Obligations (or under any portion thereof)Transaction Document. Each Uncommitted Purchaser’s obligations under this Section 11.10 shall be subject to Sections 13.5 and 13.6 and each Related Committed Purchaser shall be liable, on a joint and several basis, for all obligations of its related Uncommitted Purchaser under this Section 11.10.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Henry Schein Inc), Receivables Purchase Agreement (Henry Schein Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, Payment and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 9.11), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Loan Document Obligations owed by the Borrower or any other Loan Party; exceptprovided that this clause (c) shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the obligations of any Loan 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 the Administrative Agent; and provided, further, that for the avoidance of doubt, the foregoing 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 the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment to the Lenders.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, the Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 9.11 and which has not been returned to the Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Administrative Agent or any of its Affiliates, branches or agencies thereof to or for the credit or the account of such Lender. The Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by the Administrative Agent; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 9.11 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or and the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Mynaric AG), Credit Agreement (Mynaric AG)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 12.15 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.04 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Obligations under any Credit Document.
(e) This Section 12.15 is an agreement among the Lenders and the Administrative Agent and notwithstanding anything to the contrary herein or in any other Credit Document Obligations (and without limitation to the acknowledgment and agreements in the preceding clause (c)), the provisions of this Section 12.15 shall not constitute or create any obligations on the part of the Borrowers or any portion thereof)Credit Party.
Appears in 2 contracts
Sources: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Each Lender hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(d) Each party’s obligations under this Section 9.22 Section 8.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Brixmor Operating Partnership LP), Term Loan Agreement (Brixmor Operating Partnership LP)
Erroneous Payments. (ai) Each Lender and each L/C Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or L/C Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender or L/C Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or L/C Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 9.07(b) shall be conclusive, absent manifest error.
(bii) Without limiting the immediately preceding clause (ai), each Lender and each L/C Issuer hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or L/C Issuer otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each L/C Issuer agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Parent Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is are not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount amount, and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) . Each party’s obligations under this Section 9.22 9.07(b) shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Vista Outdoor Inc.), Asset Based Revolving Credit Agreement (Vista Outdoor Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 Section 9.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Second Amendment (1 800 Flowers Com Inc), First Amendment (1 800 Flowers Com Inc)
Erroneous Payments. With respect to any payment that the Administrative Agent makes for the account of the Lenders hereunder as to which the Administrative Agent determines (awhich determination shall be conclusive absent manifest error) Each Lender hereby agrees that any of the following applies (isuch payment referred to as the “Rescindable Amount”):
(1) if any Agent notifies the Borrower has not in fact made such Lender that such payment; (2) the Administrative Agent has determined made a payment in its sole discretion that any funds received excess of the amount so paid by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender the Borrower (whether or not known then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender amount is distributed to it to but excluding the date of payment to the date such amount is repaid to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from compensation. Without limitation of the foregoing or of any other provision in this Agreement, if at any time to time the Administrative Agent makes a payment hereunder in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect error to any demandLender, claim whether or counterclaim not in respect of an Obligation due and owing by the Borrower at such Agent for the return of time, where such payment is a Rescindable Amount, then in any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a)such event, each Lender hereby further receiving a Rescindable Amount severally agrees that if it receives an Erroneous Payment from any to repay to the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or forthwith on a different date from, that specified in a notice of payment sent demand the Rescindable Amount received by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was Rescindable Amount is received by such Lender it to but excluding the date of payment to the date such amount is repaid to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time compensation. Each Lender irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to time retain funds mistakenly paid by a third party in effect.
(crespect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Borrower and Administrative Agent shall inform each other Loan Party hereby agrees Lender promptly upon determining that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated payment made to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptcomprised, in each casewhole or in part, to the extent 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 Loan Party for the purpose of making such Erroneous Paymenta Rescindable Amount.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 2 contracts
Sources: Senior Secured Bridge Credit Agreement (Clearway Energy LLC), Senior Secured Bridge Credit Agreement (Clearway Energy, Inc.)
Erroneous Payments. (a) Each Lender and the Issuing Lender hereby agrees that (i) if any the Administrative Agent (x) notifies such Lender or the Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or the Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender or the Issuing Lender (whether or not known to such Lender or the Issuing Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and (y) demands the return of such Erroneous Payment (or a portion thereof), such Lender or the Issuing Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender or the Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or the Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender or the Issuing Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender and the Issuing Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticea notice of payment, or (z) that such Lender or the Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender or the Issuing Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or the Issuing Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender and the Issuing Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender or the Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or the Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 12.12), the Agents Administrative Agent shall be subrogated to all the rights of such Lender or the Issuing Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; exceptprovided that this Section 12.12 shall not be interpreted to increase (or accelerate the due date for) the Obligations of the Borrower 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 the Administrative Agent; provided, in each casefurther, that for the avoidance of doubt, this Section 12.12(c) 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 the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, Administrative Agent shall have the right, without prior notice to any Lender or the Issuing Lender, any such notice being expressly waived by such Lender or the Issuing Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 12.12 and that has not been returned to the Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Administrative Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender or the Issuing Lender. Administrative Agent agrees promptly to notify the Lender or the Issuing Lender after any such setoff and application made by Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 12.12 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (CoreCivic, Inc.), Credit Agreement (CoreCivic, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (aSection 11.5(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one two Business Day Days thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.5(a) shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.), Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Erroneous Payments. (a) Each Lender Funding Agent and Non-Conduit Purchaser hereby agrees that (ix) if any the Administrative Agent notifies such Lender Funding Agent or Non-Conduit Purchaser that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender any member of the related Purchaser Group from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such member of such Purchaser Group (whether or not known to such member of such Purchaser Group), and demands the return of such Erroneous Payment (or a portion thereof), such Lender member of such Purchaser Group shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender member of such Purchaser Group to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender member of such Purchaser Group shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Funding Agent or Non-Conduit Purchaser under this clause (aSection 9.10(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each member of a Purchaser Group hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender member of a Purchaser Group agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such member of such Purchaser Group shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender member of such Purchaser Group to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party ABRCF hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender Purchaser Group that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Purchaser Group with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentABRCF.
(d) Each party’s obligations under this Section 9.22 9.10 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Purchaser Group or any member thereof, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or obligations under any portion thereof)Series 2010-6 Document.
Appears in 2 contracts
Sources: Sixth Amended and Restated Series 2010 6 Supplement (Avis Budget Group, Inc.), Fifth Amended and Restated Series 2010 6 Supplement (Avis Budget Group, Inc.)
Erroneous Payments. (a) Each Lender Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Bank under this clause (a) Section 9.12 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.12 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Credit Document.
Appears in 2 contracts
Sources: Credit Agreement (Brinker International, Inc), Credit Agreement (Brinker International, Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous 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 and if such Lender fails to return the amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (ai) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 2 contracts
Sources: Loan Agreement (Banyan Acquisition Corp), Loan Agreement (Banyan Acquisition Corp)
Erroneous Payments. (a) Each Lender and L/C Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender L▇▇▇▇▇ or L/C Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender or L/C Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or L/C Issuer shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or L/C Issuer under this clause (aSection 9.18(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and L/C Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and L/C Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or L/C Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment (or any portion thereof) is, and solely with respect to the amount of such Erroneous erroneous Payment that is, is comprised of funds received by such Agent from of a Loan Party. Notwithstanding anything to the Borrower contrary herein or in any other Loan Party for Document, the purpose provisions of making such Erroneous Paymentthis Section 9.18 relating to Payments (including the preceding two paragraphs and this paragraph) shall not constitute, create or otherwise alter the Obligations on the part of the Loan Parties under the Loan Documents or otherwise.
(d) Each party’s obligations under this Section 9.22 9.18 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Container Store Group, Inc.), Senior Secured Superpriority Debtor in Possession Asset Based Revolving Credit Agreement (Container Store Group, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentParties.
(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 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 Loan Parties 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 the Collateral Agent.
(e) Each party’s obligations under this Section 9.22 11 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Sources: Loan and Security Agreement (Vapotherm Inc), Loan and Security Agreement (Vapotherm Inc)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in Dollars, and if such Lender fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Administrative Agent by such Business Day, such Lender shall also pay the Administrative Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (iiy) to the extent permitted by applicable lawLaw, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that which is required to be paid to such Lender pursuant to the terms hereof or that which is specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in Dollars, and if such Lender fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Administrative Agent by such Business Day, such Lender shall also pay the Administrative Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Lender further authorizes and agrees that in the event an Erroneous Payment (or portion thereof) is not recovered from such Lender that has received such Erroneous Payment (or portion thereof) and Administrative Agent has received amounts that are due and owing to such Lender which the Administrative Agent is required to remit to such Lender, Administrative Agent may offset such amounts by the equivalent amount of Erroneous Payments received by such Lender and, as applicable, return such amounts to the applicable payor.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount amount, and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 12.14 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Franklin BSP Capital Corp), Revolving Credit Agreement (Franklin BSP Capital Corp)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 10.13), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 10.13 and which has not been returned to the Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Administrative Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender. Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 10.13 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Term Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (United Homes Group, Inc.), Credit Agreement (United Homes Group, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Prime Index Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, such Erroneous Payment was an error has been made (and that it such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than (1) one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Prime Index Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Each Lender, each Borrower and each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of or against such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, Party except to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party Parties for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.09 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments any commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 2 contracts
Sources: Loan Agreement (Bluerock Homes Trust, Inc.), Loan Agreement (Bluerock Residential Growth REIT, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.10 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 9.10 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Third Amended and Restated Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/), Revolving Credit Agreement (American Tower Corp /Ma/)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether or not known to such Lender) (whether received as a payment, prepayment or repayment of principal, interest, fees fees, distribution or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, promptly but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, and upon demand from such the Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Agent’s rights and remedies under this Section 11.20), the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Agent provided by law, Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 11.20 and which has not been returned to the Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Agent or any of its Affiliate, branch or agency thereof to or for the credit or the account of such Lender. Agent agrees promptly to notify the Lender after any such setoff and application made by Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 11.20 shall survive the resignation or replacement of the AgentsAgent or any transfer of right or obligations by, or the replacement of, a Lender, the termination of the Revolving Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Financing Document.
Appears in 2 contracts
Sources: Credit, Security and Guaranty Agreement (Shimmick Corp), Credit, Security and Guaranty Agreement (Shimmick Corp)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.04 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 Section 8.04 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 2 contracts
Sources: Credit Agreement (Select Medical Holdings Corp), Credit Agreement (Concentra Group Holdings Parent, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each With respect to any payment that the Agent makes to any Lender hereby agrees or other Creditor Party as to which the Agent determines that any of the following applies (isuch payment referred to as the “Rescindable Amount”):
(1) if any Agent notifies such Lender that such the Borrower has not in fact made the corresponding payment to the Agent; (2) the Agent has determined made a payment in its sole discretion that any funds excess of the amount(s) received by such Lender it from such Agent the Borrower either individually or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender in the aggregate (whether or not known then owed); or (3) the Agent has for any reason otherwise erroneously made such payment; then each of the Creditor Parties severally agrees to repay to the Agent forthwith on demand the Rescindable Amount so distributed to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was madeCreditor Party, in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender amount is distributed to it to but excluding the date of payment to the date such amount is repaid to such Agent in same day funds Agent, at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrineRate. A notice of any the Agent to any Lender person under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause Notwithstanding anything to the contrary in this Agreement, if at any time the Agent determines (a)in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or other Creditor Party, whether or not in respect of an obligation due and owing by a Creditor Party at such time, where such payment is a Rescindable Amount, then in any such event, each Lender hereby further such person receiving a Rescindable Amount severally agrees that if it receives an Erroneous Payment from any to repay to the Agent (or any of its Affiliates) (x) that is in a different amount than, or forthwith on a different date from, that specified in a notice of payment sent demand the Rescindable Amount received by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, person in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment Rescindable Amount was received by it to but excluding the date of payment to the Agent, at the Federal Funds Rate. A notice of the Agent to any person under this clause (b) shall be conclusive, absent manifest error. To the extent permitted by law, each Lender and each other Creditor Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor 133 might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. The Agent shall inform each Lender or other Creditor Party that received a Rescindable Amount promptly upon determining that any payment made to such person comprised, in whole or in part, a Rescindable Amount. Each person’s obligations, agreements and waivers under this Clause 31.12 shall survive the resignation or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Liabilities (or any portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectunder any Finance Document.
(c) The Borrower and each other Loan Each Lender or Creditor Party hereby agrees that (x) in authorizes the event an Erroneous Payment (or portion thereof) is not recovered from Agent to set off, net and apply any Lender that has received such Erroneous Payment (or portion thereof) for and all amounts at any reason, the Agents shall be subrogated time owing to all the rights of such Lender with respect or Creditor Party under any Finance Document against any amount due to such amount and the Agent under immediately preceding clauses (ya) an Erroneous Payment or (b) under the indemnification provisions of this Agreement.
(d) The parties hereto agree that payment of a Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Secured Liabilities owed by the Borrower or any other Loan Security Party; , except, in each case, to the extent such Erroneous Payment Rescindable Amount is, and solely with respect to the amount of such Erroneous Payment Rescindable Amount that is, comprised of funds received by such the Agent from the Borrower or any other Loan Security Party for the purpose of making such Erroneous Payment.
Rescindable Amount. For the avoidance of doubt, no provision in this Clause 31.12 shall be interpreted to increase (dor accelerate the due date for) Each party’s obligations under this Section 9.22 shall survive or have the resignation effect of increasing (or replacement accelerating the due date for), the Secured Liabilities of the Agents, Borrower or any other Security Party relative to the termination amount (and/or timing for payment) of the Commitments or Secured Liabilities that would have been payable had the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)erroneous Rescindable Amount not been paid by the Agent.
Appears in 1 contract
Sources: Loan Agreement (Dorian LPG Ltd.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) Without limitation of any other provision in this Agreement, if at any time the Administrative Agent notifies a Lender or an Issuing Bank that it has made a payment hereunder in error to any Lender or Issuing Bank, whether or not in respect of a Loan, Letter of Credit or any other obligations of the Borrower or any other Loan Party hereunder due and owing by the Borrower or any other Loan Party at such time, where such payment is (1) in excess of the amount so paid by the Borrower or such other Loan Party in respect of such obligation to such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Issuing Bank (whether or not known then owed); or (2) for any reason otherwise erroneously made by the Administrative Agent (such payment referred to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), then in any such event, each Lender shall promptlyor Issuing Bank receiving an Erroneous Payment severally agrees to repay to the Administrative Agent promptly on demand, but in no event later than one two Business Day Days thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) received by such Lender as to which such a demand was made, made in same day immediately available funds (in the currency so received), together with interest thereon (except to the extent waived in respect of writing by the Administrative Agent), for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender it to but excluding the date of payment to the date such amount is repaid to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower . To the extent permitted by applicable Law, each Lender and each other Loan Party hereby agrees that Issuing Bank irrevocably waives any and all defenses, including any “discharge for value” (xunder which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) in the event an or similar defense to its obligation to return any Erroneous Payment (received. The Administrative Agent shall inform each Lender or portion thereof) is not recovered from Issuing Bank promptly upon determining that any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated payment made to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptIssuing Bank comprised, in each casewhole or in part, to the extent 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 Loan Party for the purpose of making such an Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Sources: Credit Agreement (Phillips 66)
Erroneous Payments. (a) Each Lender Funding Agent and Non-Conduit Purchaser hereby agrees that (ix) if any the Administrative Agent notifies such Lender Funding Agent or Non-Conduit Purchaser that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender any member of the related Purchaser Group from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such member of such Purchaser Group (whether or not known to such member of such Purchaser Group), and demands the return of such Erroneous Payment (or a portion thereof), such Lender member of such Purchaser Group shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender member of such Purchaser Group to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender member of such Purchaser Group shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Funding Agent or Non-Conduit Purchaser under this clause (aSection 9.10(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each member of a Purchaser Group hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender member of a Purchaser Group agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such member of such Purchaser Group shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender member of such Purchaser Group to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party ABRCF hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender Purchaser Group that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Purchaser Group with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentABRCF.
(d) Each party’s obligations under this Section 9.22 9.10 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Purchaser Group or any member thereof, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or obligations under any portion thereof)Series 2022-2 Document.
Appears in 1 contract
Erroneous Payments. (a) Each With respect to any payment that Administrative Agent makes to any Lender hereby agrees or other Secured Creditor as to which Administrative Agent determines that any of the following applies (isuch payment referred to as the “Rescindable Amount”):
(1) if any Agent notifies such Lender that such Borrower has not in fact made the corresponding payment to Administrative Agent; (2) Administrative Agent has determined made a payment in its sole discretion that any funds excess of the amount(s) received by such Lender it from such Agent Borrower either individually or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender in the aggregate (whether or not known then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Secured Creditors severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was madeSecured Creditor, in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender amount is distributed to it to but excluding the date such amount is repaid of payment to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrineRate. A notice of any the Administrative Agent to any Lender Person under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause Notwithstanding anything to the contrary in this Agreement, if at any time Administrative Agent determines (a)in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or other Secured Creditor, whether or not in respect of an Obligation due and owing by a Credit Party at such time, where such payment is a Rescindable Amount, then in any such event, each Lender hereby further such Person receiving a Rescindable Amount severally agrees that if it receives an Erroneous Payment from any to repay to Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or forthwith on a different date from, that specified in a notice of payment sent demand the Rescindable Amount received by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, Person in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment Rescindable Amount was received by it to but excluding the date of payment to Administrative Agent, at the Federal Funds Rate. A notice of the Administrative Agent to any Person under this clause (b) shall be conclusive, absent manifest error. To the extent permitted by law, each Lender and each other Secured Creditor irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Lender or other Secured Creditor that received a Rescindable Amount promptly upon determining that any payment made to such Person comprised, in whole or in part, a Rescindable Amount. Each Person’s obligations, agreements and waivers under this Section 10.13 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectunder any Credit Document.
(c) The Borrower Each Lender or Secured Creditor hereby authorizes the Administrative Agent to set off, net and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from apply any Lender that has received such Erroneous Payment (or portion thereof) for and all amounts at any reason, the Agents shall be subrogated time owing to all the rights of such Lender with respect or Secured Party under any Credit Document against any amount due to such amount and the Administrative Agent under immediately preceding clauses (ya) an Erroneous Payment or (b) under the indemnification provisions of this Agreement.
(d) The parties hereto agree that payment of a Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; , except, in each case, to the extent such Erroneous Payment Rescindable Amount is, and solely with respect to the amount of such Erroneous Payment Rescindable Amount that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Credit Party for the purpose of making such Erroneous PaymentRescindable Amount.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender Managing Agent hereby agrees that (i) if any the Agent notifies such Lender Managing Agent that such the Agent has determined in its sole discretion that any funds received by such Lender Managing Agent from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Managing Agent (whether or not known to such Lender) Managing Agent (whether as a payment, prepayment or repayment of principalCapital, interestDiscount, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Managing Agent shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous 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 Lender Managing Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender Managing Agent shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender Managing Agent under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Managing Agent hereby further agrees that if it receives an Erroneous Payment from any the Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Managing Agent further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Managing Agent shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous 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) that was received by such Lender Managing Agent to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower SPV and each other Loan Party Servicer hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Managing Agent that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender Managing Agent with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower SPV or Servicer (or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentAffiliate thereof).
(d) Each party’s obligations under this Section 9.22 10.12 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Managing Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations (or any portion thereof)) under any Transaction Document.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Valvoline Inc)
Erroneous Payments. (a) Each Lender and Letter of Credit Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Letter of Credit Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender ▇▇▇▇▇▇ or Letter of Credit Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Letter of Credit Issuer (whether or not known to such Lender or Letter of Credit Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Letter of Credit Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Letter of Credit Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or Letter of Credit Issuer under this clause (a) Section 12.15 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and Letter of Credit Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Letter of Credit Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Letter of Credit Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Letter of Credit Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Letter of Credit Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; exceptprovided, in each casethat this Section 12.15 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 relative to the amount (and/or timing for payments) of the Obligations that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such Agent from of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCredit Party.
(d) Each party’s obligations under this Section 9.22 12.15 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or Letter of Credit Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Credit Document.
Appears in 1 contract
Sources: Credit Agreement (OneStream, Inc.)
Erroneous Payments. (ai) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.13 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(div) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; ), individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two Business Day Days thereafter, return to such the Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous 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) that was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Obligor hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptObligor, in each case, except to the extent 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 of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentObligor.
(d) Each party’s obligations under this Section 9.22 8.14 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Total Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Credit Document.
Appears in 1 contract
Erroneous Payments. (ai) Each Lender and L/C Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender ▇▇▇▇▇▇ from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or L/C Issuer (whether or not known to such Lender or L/C Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or L/C Issuer under this clause (a) Section 9.13 shall be conclusive, absent manifest error.
(ba) Without limiting immediately preceding clause (a), each Each Lender and L/C Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and L/C Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or L/C Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cb) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making satisfying such Erroneous PaymentObligations.
(dc) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or L/C Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (AMC Networks Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any US-DOCS\129134537.4 118773011_2 reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentParties.
(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 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 Loan Parties 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 the Collateral Agent.
(e) Each party’s obligations under this Section 9.22 11 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. US-DOCS\129134537.4 118773011_2 Fax To: (▇▇▇) ▇▇▇-▇▇▇▇ Date:______________________ VAPOTHERM, INC. From Account # _______________________________ To Account #_______________________________ (Deposit Account #) (Loan Account #) Principal $ ________________________________ and/or Interest $_____________________________ Authorized Signature: ________________________ Phone Number: _____________________________ Print Name/Title: ___________________________ Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outing wire. From Account # _______________________________ To Account #_______________________________ (Deposit Account #) (Loan Account #) Amount of Advance $ ________________________________ All of each Loan Party’s representations and warranties in the Loan and Security Agreement are true and correct in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct all material respects as of such date: Authorized Signature: ________________________ Phone Number: _____________________________ Print Name/Title: ________________________ US-DOCS\129134537.4 118773011_2 Beneficiary name: ______________________________ Amount of Wire: $______________________________ Beneficiary Bank: ______________________________ Account Number: ______________________________ City and State: ________________________________ Beneficiary Bank Transit (ABA) #: _______________ Beneficiary Bank Code (Swift, Sort, Chip, Etc): ________ Intermediary Bank: ___________________________ Transit (ABA) #: ________________________________ For Further Credit to: _________________________________________________________________________________ Special Instruction: __________________________________________________________________________________ By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be processed in accordance withand subject to the terms and conditions set forth in the agreements(s) covering funds transfer service(s), which agreements(s)were previously received and executed by me (us). Authorized Signature: ____________________________ 2nd Signature (if required): ___________________________ Print Name/Title: _______________________________ Print Name/Title: ___________________________________ Telephone #: ______________ Telephone #: ______________ US-DOCS\129134537.4 118773011_2 TO: SLR INVESTMENT CORP., as Collateral Agent and Lender FROM: VAPOTTHERM, INC. The undersigned authorized officer (“Officer”) of VAPOTHERM, INC. (“Borrower”), in his capacity as an authorized officer of the Borrower and not in his individual capacity, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement dated as of February 18, 2022 by and among Borrower, the Guarantors, Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),
(a) There are no existing defaults or Events of Default, except as noted below;
(b) Except as noted below, all representations and warranties of ▇▇▇▇▇▇▇▇ stated in the Loan Documents are true and correct in all material respects on this date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date.
(c) Borrower, and each of Borrower’s Subsidiaries, has timely filed all required Tax returns and reports, Borrower, and each of Borrower’s Subsidiaries, has timely paid all foreign, federal, state, and material local, Taxes, owed by Borrower, or Subsidiary, except as otherwise permitted pursuant to the terms of Section 5.8 of the Loan Agreement;
(d) Except as noted below, no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Collateral Agent and the Lenders; and
(e) Attached is an updated Perfection Certificate.1 Attached are the required documents, if any, supporting our certification(s). The Officer, on behalf of ▇▇▇▇▇▇▇▇, further certifies that the attached financial statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes and except, in the case of unaudited financial statements, for the absence of footnotes and subject to year-end audit adjustments as to the interim financial statements.
1) Financial statements Monthly within 30 days Yes No N/A 2) Annual (CPA Audited) statements Within 90 days after FYE Yes No N/A
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender L▇▇▇▇▇ that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Each Lender hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(d) Each party’s obligations under this Section 9.22 Section 8.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: First Lien Credit Agreement (Waystar Holding Corp.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including including, without limitation limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment a payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”)the Administrative Agent, (y) that was not preceded or accompanied by an Erroneous Payment Noticenotice of payment, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each case, if an error has been made (and that it each such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, Payment and hereby waives, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reasonreason (and without limiting the Administrative Agent’s rights and remedies under this Section 8.13), the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) In addition to any rights and remedies of the Administrative Agent provided by law, the Administrative Agent shall have the right, without prior notice to any Lender, any such notice being expressly waived by such Lender to the extent permitted by applicable law, with respect to any Erroneous Payment for which a demand has been made in accordance with this Section 8.13 and which has not been returned to the Administrative Agent, to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final but excluding trust accounts), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Administrative Agent or any of its Affiliates, branches or agencies thereof to or for the credit or the account of such Lender. The Administrative Agent agrees promptly to notify the Lender after any such setoff and application made by the Administrative Agent; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
(e) Each party’s obligations under this Section 9.22 8.13 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or and the repayment, satisfaction or discharge of all Loan Document Secured Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Franchise Group, Inc.)
Erroneous Payments. (a) (i) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one two (2) Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.12 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two (2) Business Day Days thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 10.12 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Loan Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (aSection 11.5(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 11.5(a) shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Term Loan Agreement (Piedmont Office Realty Trust, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective NAI-1514693629v12 131 Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.11 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.11 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Opko Health, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.15 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Parent Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Parent Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount Administrative Agent or any of such Erroneous Payment that is, comprised of its Affiliates receives funds received by such Agent from (or at the direction of) the Parent Borrower or and/or any other Loan Party for in respect of any such Payment or such Payment is made with or on account of the purpose proceeds of making such Erroneous Paymenta payment made by (or at the direction of) the Parent Borrower and/or any other Loan Party to the Administrative Agent or any of its Affiliates in accordance with the terms of this Agreement.
(d) Each party’s obligations under this Section 9.22 9.15 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Coty Inc.)
Erroneous Payments.
(a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Prime Index Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, such Erroneous Payment was an error has been made (and that it such Lender is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than (1) one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Prime Index Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Bank under this clause (a) Section 7.08 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, Page 71 3ACTIVE 221393034 determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Co-Borrowers hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, (x) the Agents Administrative Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Co-Borrowers, except, in each case, to the extent 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 of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCo-Borrowers.
(d) Each party’s obligations under this Section 9.22 7.08 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (ai) Each Lender and each Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any Issuing Bank under this clause (aSection 8.04(c) shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), Each Lender and each Lender Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(div) Each party’s obligations under this Section 9.22 8.04(c) shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Solstice Advanced Materials Inc.)
Erroneous Payments. (a) (i) Each Lender Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the 4868-9081-7618 v.9 Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Bank under this clause (a) Section 7.12 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Company and each other Loan Party Obligor hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Company or any other Loan Party; Obligor, except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such Agent from of the Borrower Company or any other Loan Party Obligor that were provided for the purpose of making such Erroneous Paymenta payment of the Obligations, as applicable.
(d) Each party’s obligations under this Section 9.22 7.12 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Credit Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Equitable Holdings, Inc.)
Erroneous Payments. (a) Each Lender Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Bank under this clause (a) Section 7.08 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Co-Borrowers hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, (x) the Agents Administrative Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Co-Borrowers, except, in each case, to the extent 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 of the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentCo-Borrowers.
(d) Each party’s obligations under this Section 9.22 7.08 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.03 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to [Signature Page to Eleventh Amendment to the First Lien Credit Agreement] [[7993221]] the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Each Lender hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(d) Each party’s obligations under this Section 9.22 8.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: First Lien Credit Agreement (Waystar Holding Corp.)
Erroneous Payments. (a) Each Lender Purchaser hereby agrees that (ix) if any the Administrative Agent notifies such Lender Purchaser that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Purchaser from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Purchaser (whether or not known to such Purchaser), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Purchaser shall promptly, but in no event later than one (1) Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable lawLaw, such Lender Purchaser shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Purchaser under this clause (aSection 10.13(a) shall be conclusive, absent manifest error.. 127256974\V-8
(b) Without limiting immediately preceding clause (a), each Lender Each Purchaser hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Purchaser agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Purchaser shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Purchaser to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Seller and each other Loan Party the Servicer hereby agrees agree that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Purchaser with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Seller or any other Loan Seller-Related Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 10.13 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Purchaser, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Transaction Document.
Appears in 1 contract
Erroneous Payments. (a) Each With respect to any payment that Administrative Agent makes to any Lender hereby agrees or other Secured Creditor as to which Administrative Agent determines that any of the following applies (isuch payment referred to as the “Rescindable Amount”):
(1) if any Agent notifies such Lender that such Borrower has not in fact made the corresponding payment to Administrative Agent; (2) Administrative Agent has determined made a payment in its sole discretion that any funds excess of the amount(s) received by such Lender it from such Agent Borrower either individually or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender in the aggregate (whether or not known then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Secured Creditors severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was madeSecured Creditor, in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender amount is distributed to it to but excluding the date such amount is repaid of payment to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrineRate. A notice of any the Administrative Agent to any Lender Person under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause Notwithstanding anything to the contrary in this Agreement, if at any time Administrative Agent determines (a)in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or other Secured Creditor, whether or not in respect of an Obligation due and owing by a Credit Party at such time, where such payment is a Rescindable Amount, then in any such event, each Lender hereby further such Person receiving a Rescindable Amount severally agrees that if it receives an Erroneous Payment from any to repay to Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or forthwith on a different date from, that specified in a notice of payment sent demand the Rescindable Amount received by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, Person in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) Rescindable Amount was received by such Lender it to but excluding the date such amount is repaid of payment to such Agent in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined Rate. A notice of the Administrative Agent to any Person under this clause (b) shall be conclusive, absent manifest error. To the extent permitted by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower law, each Lender and each other Loan Party hereby agrees Secured Creditor irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Lender or other Secured Creditor that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from received a Rescindable Amount promptly upon determining that any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect payment made to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptPerson comprised, in each casewhole or in part, to the extent such Erroneous Payment isa Rescindable Amount. Each Person’s obligations, agreements 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations waivers under this Section 9.22 10.13 shall survive the resignation or replacement of the AgentsAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or and/or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Credit Document.
Appears in 1 contract
Erroneous Payments. (aA) Each Lender (which term shall for the purposes of this and the succeeding paragraphs of this Section 7.03 include the Issuing Banks) hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 7.03 shall be conclusive, absent manifest error.
(bB) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cC) The Each Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount to the maximum extent permitted by law and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided, that this clause (c) shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), any Obligations of the Loan Parties in each caserespect of principal and interest hereunder relative to the amount (and/or timing for payment) of the Obligations of the Loan Parties in respect of principal and interest hereunder that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, this clause (c) 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 the Administrative Agent from the any Borrower or any other Loan Party for the purpose of making such Erroneous Payment, satisfying Obligations or from the proceeds of Collateral.
(dD) Each party’s obligations under this Section 9.22 7.03 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Amendment to Revolving Credit Agreement (Bath & Body Works, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that Subject to the remaining provisions of this Section 15.6, ALLIANCE-ONE shall reimburse Customer for "EP Amounts" (as defined below) by Customer or its Affiliates to a Contract Holder, an insurance producer authorized by Customer or its Affiliates to market, solicit, sell or negotiate Contracts, a person claiming to be a Contract Holder or such an insurance producer (collectively, each an "EP Third Party"), which amounts would not have been paid or payable had ALLIANCE-ONE performed the Administration Services in accordance with the Set of Agreement (hereafter, an "EP Amount"). EP Amounts may include:
(i) if Insurance claims payments based upon a Contract but paid by ALLIANCE-ONE to a person other than the beneficiary listed in such Contract;
(ii) Loan proceeds based upon a Contract but paid by ALLIANCE-ONE to a person other than the owner listed in such Contract;
(iii) Surrenders or withdrawals based upon a Contract but paid by ALLIANCE-ONE to a person other than the owner of such Contract;
(iv) Overpayments made to any Agent notifies such Lender that such Agent has determined person in connection with a claim, loan, surrender or withdrawal; or
(v) If applicable, commission payments made by ALLIANCE-ONE to the wrong person.
(b) EP Amounts shall not include amounts paid or payable to any third party as a result of: (i) incorrect data provided to ALLIANCE-ONE by Customer or its sole discretion that any funds received by such Lender from such Agent Affiliates, (ii) acts or any omissions of Customer or its Affiliates were erroneously transmitted toor their respective predecessors inconsistent with its obligations under this Set of Agreements, (iii) Customer's express approval, unless Customer's approval was based on incorrect data supplied by Suppler; or otherwise erroneously or mistakenly received by, such Lender (whether or not known iv) defects in the software previously used by Customer to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands perform for itself the return administration services where ALLIANCE-ONE continued the use of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent software in accordance with banking industry rules the Admin Guidelines and where ALLIANCE-ONE did not otherwise have a duty hereunder to correct such software. Further, EP Amounts shall not include any contractual underpayments owed by Customer to an EP Third Party.
(c) ALLIANCE-ONE shall not be liable to pay Customer for Erroneous Payments in any Contract Year until and unless the aggregate of all EP Amounts in that Contract Year exceed four percent (4%), and then only for amounts that exceed that four percent (4%) threshold, of the fees for Administration Services (less taxes and Reimbursable Expenses) to be paid and payable by Customer under that particular Work Order for that Contract Year (the "EP Threshold"). For any portion of a Contract Year during the Term, the EP Threshold shall be based on interbank compensation from time a fraction of the number of whole calendar months in the Term in the applicable Contract Year, divided by twelve (12).
(d) Subject to time Section 15.6(h), if the total of EP Amounts arising in effect and a given Contract Year under a particular Work Order exceed the EP Threshold for that Contract Year for that Work Order, ALLIANCE-ONE shall reimburse Customer for fifty percent (ii50%) of the EP Amounts in that Contract Year above the EP Threshold.
(e) Customer shall take "Reasonable Recovery Steps" (as defined below) to mitigate the damages incurred as a result of an EP Amount. Customer shall also cooperate with ALLIANCE-ONE to assist ALLIANCE-ONE in taking Reasonable Recovery Steps to recover or otherwise mitigate EP Amounts, which may include reasonable revisions to the Admin Guidelines designed to prevent future failures. If requested by ALLIANCE-ONE for the purpose of ALLIANCE-ONE taking Reasonable Recovery Steps on behalf of Customer, to the extent permitted by applicable lawApplicable Law, Customer shall assign its rights to ALLIANCE-ONE, or to enter a subrogation agreement with ALLIANCE-ONE, to assist ALLIANCE-ONE in taking Reasonable Recovery Steps. To the extent that ALLIANCE-ONE has reimbursed Customer for an EP Amount, then the amount so recovered shall belong to ALLIANCE-ONE.
(f) Prior to ALLIANCE-ONE taking any action to collect amounts paid by ALLIANCE-ONE to Customer under this Section, ALLIANCE-ONE first shall consult with Customer regarding the Reasonable Recovery Steps proposed to be taken by ALLIANCE-ONE. ALLIANCE-ONE will not take any other action (other than Reasonable Recovery Steps) to recover an EP Amount without Customer's prior written consent not to be unreasonably delayed, denied or conditioned.
(g) ALLIANCE-ONE shall reimburse Customer for EP Amounts within sixty (60) days after ALLIANCE-ONE's receipt of a written claim from Customer that such Lender amounts are due and the reasons therefore.
(h) For the avoidance of doubt, ALLIANCE-ONE's maximum liability for all EP Amounts, when added together for a particular Work Order, is the equivalent of the last six (6) months of fees paid by Customer under that particular Work Order. ALLIANCE-ONE's payment to Customer of its liability under this Subsection 15.6 counts towards the overall cap of liability found in Section 16.2 of the Agreement. Further, EP Amounts reimbursed by ALLIANCE-ONE under this Section 15.6 shall not assert any be deemed to be consequential damages under Section 16.3.
(i) If the EP Amounts for a particular Work Order exceed the EP Threshold, Customer shall have the right to terminate that particular Work Order (or claim those parts relating to ALLIANCE-ONE's failures giving rise to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereofPayments) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge convenience without early termination fee or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Paymentpenalty.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Sources: Third Party Administrator Agreement (Lincoln Benefit Life Variable Life Account)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Administrative Agent notifies such Lender that such Administrative Agent has determined in its sole discretion that any funds received by such Lender from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such LenderLender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 10.18 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. ENTERED INTO as of the date first above written. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Chief Financial Officer and Senior Vice President TRUIST BANK, as the Administrative Agent, as the Issuing Bank, as the Swingline Lender, and as a Lender By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Director Truist Bank $50,000,000.00 Reference is made to the Amended and Restated Revolving Credit Agreement dated as of October 6, 2023 (as amended and in effect on the date hereof, the “Agreement”), among HEALTHSTREAM, INC., a Tennessee corporation (“Borrower”), the lenders from time to time party thereto and TRUIST BANK, as Administrative Agent for such lenders. Terms defined in the Agreement are used herein with the same meanings. The [name of assignor] (the “Assignor”) hereby sells and assigns, without recourse, to [name of assignee] (the “Assignee”), and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as of the Assignment Date set forth below, the interests set forth below (the “Assigned Interest”) in the Assignor’s rights and obligations under the Agreement, including, without limitation, the interests set forth below, as applicable, in the Revolving Commitment of the Assignor on the Assignment Date and Revolving Loans owing to the Assignor which are outstanding on the Assignment Date, but excluding accrued interest and fees to and excluding the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the provisions of the Agreement and, to the extent of the Assigned Interest, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest, relinquish its rights and be released from its obligations under the Agreement. This Assignment and Acceptance is being delivered to the Administrative Agent together with any documentation required to be delivered by the Assignee, duly completed and executed by the Assignee. The Assignee shall pay the fee payable to the Administrative Agent pursuant to this Agreement.
(a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (ii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby, and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrowers, any of their respective Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrowers, any of their respective Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Lender under the Agreement, (ii) from and after the Effective Date, it shall be bound by the provisions of the Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, and (iii) it has received a copy of the Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date, unless otherwise agreed in writing by the Administrative Agent, Assignor and Assignee. This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns. This Assignment and Acceptance may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Acceptance by telecopy or other electronic transmission (including in pdf format) shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of Tennessee. Assignment Date: Legal Name of Assignor: Legal Name of Assignee: Assignee’s Address for Notices: Effective Date of Assignment: (“Effective Date”): [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] Revolving Loans $ % Term Loan $ N/A The terms set forth above are hereby agreed to: [Name of Assignor], as Assignor By: Name: Title: [Name of Assignee], as Assignee By: Name: Title: [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] The undersigned hereby consents to the within assignment: HEALTHSTREAM, INC. TRUIST BANK, as Administrative Agent By: By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Chief Financial Officer ▇▇▇▇▇▇▇▇ ▇▇▇▇, Director and Senior Vice President [FORM ATTACHED AS EXHIBIT – DO NOT EXECUTE WITH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT] THIS SUBSIDIARY GUARANTY AGREEMENT (the “Agreement”), dated as of the ____ day of ___________________, 20________, by and among HEALTHSTREAM, INC., a Tennessee corporation (the “Borrower”), each of the subsidiaries of the Borrower listed on Schedule I hereto (each such subsidiary individually, a “Guarantor” and collectively, the “Guarantors”) and TRUIST BANK, a North Carolina banking corporation, as administrative agent (the “Administrative Agent”) for the benefit of itself and the several banks and other financial institutions (the “Lenders”) from time to time party to the Amended and Restated Revolving Credit Agreement, dated October 6, 2023, by and among the Borrower, the several banks and other financial institutions from time to time party thereto (the “Lenders”), the Administrative Agent, and Truist Bank, as Issuing Bank (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall the meanings assigned to such terms in the Credit Agreement).
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Collateral Agent notifies such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Collateral Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate federal funds rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentParties.
(d) This Section 11 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower, and no Erroneous Payment shall constitute, create, increase or otherwise alter any Obligations of the Loan Parties under the Loan Documents or otherwise. An Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Loan Parties; provided that this Section 11 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 Loan Parties 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 the Collateral Agent. US-DOCS\129134537.4 118773011_2
(e) Each party’s obligations under this Section 9.22 11 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Term Loan Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. US-DOCS\129134537.4 118773011_2 Fax To: (▇▇▇) ▇▇▇-▇▇▇▇ Date: _____________________ From Account #________________________________ To Account #__________________________________________________ (Deposit Account #) (Loan Account #) Principal $____________________________________ and/or Interest $________________________________________________ Authorized Signature: Phone Number: Print Name/Title: Complete Outgoing Wire Request section below if all or a portion of the funds from this loan advance are for an outgoing wire. From Account #________________________________ To Account #__________________________________________________ (Loan Account #) (Deposit Account #) Amount of Advance $___________________________ All of each Loan Party’s representations and warranties in the Loan and Security Agreement are true and correct in all material respects on the date of the request for an advance; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct all material respects as of such date: Authorized Signature: Phone Number: Print Name/Title: Beneficiary Name: _____________________________ Amount of Wire: $ Beneficiary Bank: ______________________________ Account Number: City and State: Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.): Intermediary Bank: Transit (ABA) #: For Further Credit to: Special Instruction: US-DOCS\129134537.4 118773011_2 Authorized Signature: ___________________________ 2nd Signature (if required): _______________________________________ Print Name/Title: ______________________________ Print Name/Title: ______________________________________________ Telephone #: Telephone #: US-DOCS\129134537.4 118773011_2 TO: SLR INVESTMENT CORP., as Collateral Agent and Lender FROM: VAPOTHERM, INC. The undersigned authorized officer (“Officer”) of VAPOTHERM, INC. (“Borrower”)., in his capacity as an authorized officer of the Borrower and not in his individual capacity, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement dated as of February 18, 2022 by and among Borrower, the Guarantors, Collateral Agent, and the Lenders from time to time party thereto (the “Loan Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings given them in the Loan Agreement),
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Administrative Agent notifies such Lender that such Administrative Agent has determined in its sole discretion that any funds received by such Lender from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such LenderLender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentBorrower.
(d) Each party’s obligations under this Section 9.22 10.23 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
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Sources: Revolving Credit Agreement (NexPoint Residential Trust, Inc.)
Erroneous Payments. (a) Each Lender and Issuing Bank hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such LenderLender or Issuing Bank) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Fed Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater A notice of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment or Issuing Bank under this clause (or portion thereofa) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not payconclusive, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Paymentabsent manifest error.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
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Erroneous Payments. (a) Each Lender and Issuing Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender, as applicable, shall promptly, but in no event later than one two (2) Business Day thereafterDays thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender, as applicable, to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or such Issuing Lender, as applicable, shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or Issuing Lender under this clause (a) Section 9.12 shall be conclusive, absent manifest error.
error.(b) (c) (d) (b) Without limiting immediately preceding clause (a), each Each Lender and Issuing Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or such Issuing Lender, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two (2) Business Day thereafterDays thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
effect.(e) (cf) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereofg).
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Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous 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 and if such Lender fails to return the amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (ai) shall be conclusive, absent manifest error.
(b) . Without limiting immediately preceding clause (ai), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence (provided, that a failure by any Lender to notify the Agent of such occurrence shall neither constitute nor be deemed to constitute a breach by such Lender of any of its obligations under this Agreement unless and to the extent such failure resulted from such ▇▇▇▇▇▇’s gross negligence or willful misconduct) and, upon demand from such the Agent, it shall promptly, but in all events no later than 19107526-5 one (1) Business Day thereafter, return to such the Agent the amount of any such Erroneous 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 and if such Lender fails to return the amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Agent by such Business Day, such Lender shall also pay the Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party . Each Obligor hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment that does not consist of the Borrower’s funds, or to the extent an Erroneous Payment consists of the Borrower’s funds and such Erroneous Payment has been returned to the Borrower, such Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Obligor. Each party’s obligations under this Section 9.22 8.6 shall survive the resignation or replacement of the AgentsAgent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof) under any Loan Document. Successors and Assigns. This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties, provided, that the Borrower may not assign this Agreement or any rights or obligations hereunder without the Agent’s prior written consent and any prohibited assignment shall be null and void ab initio. The Lenders may sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, or any right or remedy under, the Obligations and the Loan Documents. The parties to each assignment shall deliver to the Agent a document evidencing such assignment that includes the names and addresses of such parties and the amount of commitment or Loans being assigned pursuant to such document (“Assignment and Assumption”). The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Appears in 1 contract
Erroneous Payments. (ai) Each Lender and Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or Issuing Bank under this clause (a) Section 8.14 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender and Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(div) Each party’s obligations under this Section 9.22 8.14 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim assert, and LEGAL02/46224329v7 ▇▇▇▇▇▇ ▇▇▇▇▇▇, as to the Erroneous Payment, and hereby waivesAdministrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 10.3(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Parent, the Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptParent, in each case, to the extent 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 Loan Party except, in each case, solely to the extent such Payment is comprised of funds received by the Administrative Agent from Parent, the Borrower or another Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(d) Each party’s obligations under this Section 9.22 10.3(a) shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 9.25 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided that this Section 9.25 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), to the extent such Erroneous Payment is, and solely with respect Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous erroneous Payment that is, comprised of funds received not been made by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAdministrative Agent.
(d) Each party’s obligations under this Section 9.22 9.25 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 147 (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Invacare Corp)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.19 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 10.19 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
(a) all of its obligations, liabilities and indebtedness under such Loan Document Obligations shall remain in full force and effect on a continuous basis after giving effect to the Amendment and its guarantee, if any, of the obligations, liabilities and indebtedness of the other Loan Parties under the Credit Agreement and the other Loan Documents shall extend to and cover, without limitation, the New Revolving Credit Commitments and the Revolving Credit Loans made thereunder in each case provided pursuant to the Amendment, and interest thereon and fees and expenses and other obligations in respect thereof and in respect of commitments related thereto; and
(or any portion thereof)b) all of the Liens and security interests created and arising under such Loan Document remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, after giving effect to the Amendment, as collateral security for its obligations, liabilities and indebtedness under the Credit Agreement and under its guarantees, if any, in the Loan Documents, including, without limitation, obligations in respect of the New Revolving Credit Commitments and the Revolving Credit Loans made thereunder and the other obligations under the Amendment.
Appears in 1 contract
Sources: Credit Agreement (Cars.com Inc.)
Erroneous Payments. (a) (i) Each Lender Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Bank under this clause (a) Section 7.12 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Obligor hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Obligor, except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such Agent from of the Borrower or any other Loan Party Obligor that were provided for the purpose of making such Erroneous Paymenta payment of the Obligations, as applicable.
(d) Each party’s obligations under this Section 9.22 7.12 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Credit Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Equitable Holdings, Inc.)
Erroneous Payments. (a) Each Lender and each Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or such Issuing Bank, as applicable, that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or such Issuing Bank, as applicable, from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or such Issuing Bank, as applicable (whether or not known to such Lender or such Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or such Issuing Bank, as applicable, shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or such Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, no such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any Issuing Bank under this clause (a) Section 8.04 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Lender Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or such Issuing Bank, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or such Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or any Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or such Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided that for the avoidance of doubt, in each case, the immediately preceding clause (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 the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.04 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or an Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each Lender hereby authorizes each Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise payable or distributable by either Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that either Agent has demanded to be returned under this Section 9.19.
(e) Each party’s obligations under this Section 9.22 9.19 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Sources: Senior Subordinate Superpriority Secured Debtor in Possession Credit Agreement (ProSomnus, Inc.)
Erroneous Payments. (a) Each Lender Funding Agent and Non-Conduit Purchaser hereby agrees that (ix) if any the Administrative Agent notifies such Lender Funding Agent or Non-Conduit Purchaser that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender any member of the related Purchaser Group from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such member of such Purchaser Group (whether or not known to such member of such Purchaser Group), and demands the return of such Erroneous Payment (or a portion thereof), such Lender member of such Purchaser Group shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender member of such Purchaser Group to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender member of such Purchaser Group shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Funding Agent or Non-Conduit Purchaser under this clause (aSection 9.10(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each member of a Purchaser Group hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender member of a Purchaser Group agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such member of such Purchaser Group shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender member of such Purchaser Group to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Sources: Fourth Amended and Restated Series 2010 6 Supplement (Avis Budget Group, Inc.)
Erroneous Payments. (ai) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 9.14 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower Company and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Company or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(div) Each party’s obligations under this Section 9.22 9.14 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender (which term shall for the purposes of this and the succeeding paragraphs of this Section 7.03 include the Issuing Banks) hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and as to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waivesAdministrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater A notice of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 7.03 shall survive the resignation or replacement of the Agentsbe conclusive, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)absent manifest error.
Appears in 1 contract
Sources: Revolving Credit Agreement (Victoria's Secret & Co.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such or on behalf of the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 9.12(a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any or on behalf of the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) Each Lender hereby agrees that, to the extent it fails to return any Erroneous Payment to the Administrative Agent pursuant to, and within the time periods required by, clauses (a) or (b) above, the Administrative Agent (or its Affiliates) is authorized at any time and from time to time thereafter, to the fullest extent permitted by law, to set off and apply any and all deposits of such Lender (general or special, time or demand, provisional or final) at any time held by or on behalf of the Administrative Agent (or its Affiliate, including by branches and agencies of the Administrative Agent, wherever located) for the account of such Lender against any such amounts.
(d) The Borrower and each other Loan Credit Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(de) Each party’s obligations under this Section 9.22 9.12 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Credit Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and each Issuing Bank hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 11.11(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Lender Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Credit Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, is comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Credit Party for the purpose of making such Erroneous Paymentpaying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(d) Each party’s obligations under this Section 9.22 11.11 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (PDC Energy, Inc.)
Erroneous Payments. (a) Each Lender and Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) or Issuing Bank pursuant to the foregoing shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Obligor hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the Borrower or any other Loan PartyObligor; exceptprovided that this Section 8.09(c) shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Secured Obligations of the Borrower relative to the amount (and/or timing for payment) of the Secured Obligations that would have been payable had such erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, Section 8.09(b) and this Section 8.09(c) shall not apply to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent or applicable Lender or Issuing Bank from the Borrower or any other Loan Party Obligor for the purpose of making such Erroneous Payment.
(d) payment in respect of the Secured Obligations. Each party’s obligations under this Section 9.22 pursuant to the foregoing shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, an Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Blue Owl Capital Corp III)
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 7.09 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment erroneous payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment erroneous payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower; provided that this Section 7.09 shall not be interpreted to increase (or accelerate the due date for) the obligations of the Borrower or any other Loan Party; except, hereunder in each case, to the extent such Erroneous Payment is, and solely accordance with respect this Agreement relative to the amount (and/or timing for payment) of such Erroneous obligations that would have been payable had such erroneous Payment that is, comprised of funds received not been made by such Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous PaymentAgent.
(d) Each party’s obligations under this Section 9.22 Section 7.09 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)obligations of the Borrower under this Agreement and the other documents to be delivered hereunder.
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds EffectiveNYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.11 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds EffectiveNYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.11 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Opko Health, Inc.)
Erroneous Payments. (a) Each Lender and each Issuing Bank hereby agrees that (i) if any the Administrative Agent notifies such Lender or Issuing Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank, as the case may be, shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender or Issuing Bank, as the case may be, shall not assert any right or claim to the Erroneous Paymentassert, and each Lender and Issuing Bank hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and as to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waivesAdministrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 8.15 shall be conclusive, absent manifest error.
(b) Each Lender and each Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (i) that is in a different amount than, or on a different date from, that is specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (ii) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank, as the case may be, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or such Issuing Bank with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender Buyer hereby agrees that (ix) if any Agent notifies such Lender Buyer that such Agent has determined in its sole discretion that any funds received by such Lender Buyer from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Buyer (whether or not known to such LenderBuyer) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Buyer shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in Dollars, and if such Buyer fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to Agent by such Lender Business Day, such Buyer shall also pay Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender Buyer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of Agent to any Buyer under this subsection (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Buyer hereby further agrees that if it receives an Erroneous Payment from Agent (or any of its Affiliates) (i) that is in a different amount than, or on a different date from, that which is required to be paid to such Buyer pursuant to the terms hereof or that which is specified in a notice of payment sent by Agent (or any of its Affiliates) with respect to such Erroneous Payment (a “Erroneous Payment Notice”), (ii) that was not preceded or accompanied by an Erroneous Payment Notice, or (iii) that such Buyer otherwise becomes aware was transmitted, or received, in error or mistake (in whole or in part), in each case, an error has been made with respect to such Erroneous Payment, and to the 118109294\V-13 extent permitted by applicable law, such Buyer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Buyer agrees that, in each such case, it shall promptly (and, in all events, within one (1) Business Day of its actual knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one (1) Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in Dollars, and if such Buyer fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to Agent by such Lender Business Day, such Buyer shall also pay Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Buyer further authorizes and agrees that in the event an Erroneous Payment (or portion thereof) is not recovered from such Buyer that has received such Erroneous Payment (or portion thereof) and Agent has received amounts that are due and owing to such Buyer which Agent is required to remit to such Buyer, Agent may offset such amounts by the equivalent amount of Erroneous Payments received by such Buyer and, as applicable, return such amounts to the applicable payor.
(c) The Borrower and each other Loan Party Seller hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Buyer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender Buyer with respect to such amount amount, and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptSeller, in each case, except to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by such the Agent from the Borrower or any other Loan Party Seller for the purpose purposes of making such Erroneous Paymentsatisfying an Obligation.
(d) Each party’s obligations under this Section 9.22 47 shall survive the resignation or replacement of the AgentsAgent, the termination of the Commitments Agreement or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Program Document.
(v) The first sentence of the loan level representation in Schedule 1, paragraph (d) of the Agreement is hereby deleted and replaced in its entirety with the following:
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
Erroneous Payments. (ai) Each Lender hereby agrees that (ix) if any the Agent notifies such Lender that such the Agent has determined in its sole discretion that any funds received by such Lender from such the Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Agent to any Lender under this clause (a) Section 9.14 shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Agent of such occurrence and, upon demand from such the Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ciii) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous PaymentCompany.
(div) Each party’s obligations under this Section 9.22 9.14 shall survive the resignation or replacement of the AgentsAgent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and each Issuing Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of including, with-out limitation, any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.16 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Lender, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender (as applicable) to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender, as applicable, with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent the Administrative Agent or any of its Affiliates receives funds from (or at the direction of) any Loan Party in respect of any such Erroneous Payment is, and solely or such Payment is made with respect or on account of the proceeds of a payment made by (or at the direction of) any Loan Party to the amount of such Erroneous Payment that is, comprised of funds received by such Administrative Agent from the Borrower or any other Loan Party for of its Affiliates in accordance with the purpose terms of making such Erroneous Paymentthis Agreement.
(d) Each party’s obligations under this Section 9.22 10.16 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of a Lender or Issuing Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (OPENLANE, Inc.)
Erroneous Payments. (a) (i) Each Lender Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender Bank that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender Bank from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Bank (whether or not known to such Bank), and demands the return of such Erroneous Payment (or a portion thereof), such Lender Bank shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender Bank shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender Bank under this clause (a) Section 7.12 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender Each Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender Bank to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party Company hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender Bank that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender Bank with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; Company, except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such Agent from of the Borrower or any other Loan Party Company that were provided for the purpose of making such Erroneous Paymenta payment of the Obligations, as applicable.
(d) Each party’s obligations under this Section 9.22 7.12 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Credit Document.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Equitable Holdings, Inc.)
Erroneous Payments. (a) Each With respect to any payment that the Agent makes to any Lender hereby agrees or other Creditor Party as to which the Agent determines that any of the following applies (isuch payment referred to as the “Rescindable Amount”):
(1) if any Agent notifies such Lender that such the Borrower has not in fact made the corresponding payment to the Agent; (2) the Agent has determined made a payment in its sole discretion that any funds excess of the amount(s) received by such Lender it from such Agent the Borrower either individually or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender in the aggregate (whether or not known then owed); or (3) the Agent has for any reason otherwise erroneously made such payment; then each of the Creditor Parties severally agrees to repay to the Agent forthwith on demand the Rescindable Amount so distributed to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was madeCreditor Party, in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender amount is distributed to it to but excluding the date of payment to the date such amount is repaid to such Agent in same day funds Agent, at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrineRate. A notice of any the Agent to any Lender person under this clause (a) shall be conclusive, absent manifest error.. 132 SK 26945 0003 10902825 v6
(b) Without limiting immediately preceding clause Notwithstanding anything to the contrary in this Agreement, if at any time the Agent determines (a)in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or other Creditor Party, whether or not in respect of an obligation due and owing by a Creditor Party at such time, where such payment is a Rescindable Amount, then in any such event, each Lender hereby further such person receiving a Rescindable Amount severally agrees that if it receives an Erroneous Payment from any to repay to the Agent (or any of its Affiliates) (x) that is in a different amount than, or forthwith on a different date from, that specified in a notice of payment sent demand the Rescindable Amount received by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, person in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day immediately available funds (in the currency so received), together with interest thereon in respect of thereon, for each day from and including the date such Erroneous Payment Rescindable Amount was received by it to but excluding the date of payment to the Agent, at the Federal Funds Rate. A notice of the Agent to any person under this clause (b) shall be conclusive, absent manifest error. To the extent permitted by law, each Lender and each other Creditor Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. The Agent shall inform each Lender or other Creditor Party that received a Rescindable Amount promptly upon determining that any payment made to such person comprised, in whole or in part, a Rescindable Amount. Each person’s obligations, agreements and waivers under this Clause 31.12 shall survive the resignation or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Liabilities (or any portion thereof) was received by such Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effectunder any Finance Document.
(c) The Borrower and each other Loan Each Lender or Creditor Party hereby agrees that (x) in authorizes the event an Erroneous Payment (or portion thereof) is not recovered from Agent to set off, net and apply any Lender that has received such Erroneous Payment (or portion thereof) for and all amounts at any reason, the Agents shall be subrogated time owing to all the rights of such Lender with respect or Creditor Party under any Finance Document against any amount due to such amount and the Agent under immediately preceding clauses (ya) an Erroneous Payment or (b) under the indemnification provisions of this Agreement.
(d) The parties hereto agree that payment of a Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Secured Liabilities owed by the Borrower or any other Loan Security Party; , except, in each case, to the extent such Erroneous Payment Rescindable Amount is, and solely with respect to the amount of such Erroneous Payment Rescindable Amount that is, comprised of funds received by such the Agent from the Borrower or any other Loan Security Party for the purpose of making such Erroneous Payment.
Rescindable Amount. For the avoidance of doubt, no provision in this Clause 31.12 shall be interpreted to increase (dor accelerate the due date for) Each party’s obligations under this Section 9.22 shall survive or have the resignation effect of increasing (or replacement accelerating the due date for), the Secured Liabilities of the Agents, Borrower or any other Security Party relative to the termination amount (and/or timing for payment) of the Commitments or Secured Liabilities that would have been payable had the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)erroneous Rescindable Amount not been paid by the Agent.
Appears in 1 contract
Sources: Loan Agreement (Dorian LPG Ltd.)
Erroneous Payments. (ai) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender ▇▇▇▇▇▇ from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in Dollars, and if such Lender fails to return the currency so received), together with interest thereon in respect amount of each day from and including the date any such Erroneous Payment (or portion thereof) was received to the Administrative Agent by such Business Day, such Lender shall also pay the Administrative Agent interest thereon in respect of each day after such Business Day to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (ai) shall be conclusive, absent manifest error.
(bii) Without limiting the immediately preceding clause (ai), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that which is required to be paid to such Lender pursuant to the terms hereof or that which is specified in a notice of payment sent by such the Administrative Agent (or any of its their respective Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).similar
Appears in 1 contract
Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Erroneous Payments. (a) Each Lender and each Issuing Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds applicable Overnight Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of including, with-out limitation, any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 10.16 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Issuing Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Lender, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Lender (as applicable) to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds applicable Overnight Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Each Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender, as applicable, with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent the Administrative Agent or any of its Affiliates receives funds from (or at the direction of) any Loan Party in respect of any such Erroneous Payment is, and solely or such Payment is made with respect or on account of the proceeds of a payment made by (or at the direction of) any Loan Party to the amount of such Erroneous Payment that is, comprised of funds received by such Administrative Agent from the Borrower or any other Loan Party for of its Affiliates in accordance with the purpose terms of making such Erroneous Paymentthis Agreement.
(d) Each party’s obligations under this Section 9.22 10.16 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of a Lender or Issuing Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each The Lender hereby agrees that (i) if any the Collateral Agent notifies in writing such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Collateral Agent may not make any such demand under this clause (a)(i) with respect to an Erroneous Payment unless such demand is made within two Business Days of the date of receipt of such Erroneous Payment by the Lender), such Lender shall promptly, but in no event later than one two Business Day thereafterDays after receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made, in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (xi) that is in a different amount than, or on a different date from, that specified in a written notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (ziii) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has shall have been presumed to have been made (and that it is deemed absent written confirmation from the Collateral Agent to have knowledge of such error at the time of receipt of such Erroneous Paymentcontrary) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafterafter receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and Issuing Bank hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Issuing Bank, as applicable, that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Bank, as applicable from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Issuing Bank, as applicable (whether or not known to such Lender or Issuing Bank, as applicable), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Issuing Bank, as applicable shall promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Issuing Bank, as applicable shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 8.11 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and Issuing Bank hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Issuing Bank, as applicable, shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one two Business Day thereafterDays thereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Issuing Bank, as applicable to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank, as applicable with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Loan Document Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 8.11 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations under any Loan Document.
(e) Notwithstanding anything to the contrary herein or in any portion thereof)other Loan Document, this Section 8.11 will not create any additional Secured Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Secured Obligations.
Appears in 1 contract
Erroneous Payments. (a1) Each Lender and each L/C Issuer hereby agrees that (i) if any the Administrative Agent notifies such Lender or L/C Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or L/C Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender or L/C Issuer (whether or not known to such LenderLender or L/C Issuer) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender or L/C Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Base Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any L/C Issuer under this clause (a) shall be conclusive, absent manifest error.
(b2) Without limiting immediately preceding clause (ai), each Lender and each L/C Issuer hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender or L/C Issuer otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender or L/C Issuer shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each L/C Issuer agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender or L/C Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Base Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c3) The Borrower Borrowers and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or L/C Issuer with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Borrowers or any other Loan Party unless, for the purpose avoidance of making doubt, such Erroneous PaymentPayment (or portion thereof) that is not recovered from such Lender or L/C Issuer is with respect to any funds paid by any Borrower Party to the Administrative Agent, in which case such Erroneous Payment shall be deemed to be an optional prepayment of the Obligations owed to such Lender or L/C Issuer paid in accordance with this Agreement.
(d4) Each party’s obligations under this Section 9.22 9.03(e) shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Atotech LTD)
Erroneous Payments. (a) Each Lender and other Secured Party hereby agrees that (ix) if any Administrative Agent notifies such Lender or Secured Party that such Administrative Agent has determined in its sole discretion that any funds received by such Lender or Secured Party from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Secured Party (whether or not known to such Lender or Secured Party), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Secured Party shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Secured Party shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to such Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any such Administrative Agent to any Lender or Secured Party under this clause (a) Section 9.17 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender or Secured Party hereby further agrees that if it receives an Erroneous a Payment from any such Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender or Secured Party agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Secured Party shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Secured Party that has received such Erroneous Payment (or portion thereof) for any reason, the Agents such Administrative Agent shall be subrogated to all the rights of such Lender or Secured Party with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (c) will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(d) Each party’s obligations under this Section 9.22 9.17 shall survive the resignation or replacement of any Administrative Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender or Secured Party, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Farfetch LTD)
Erroneous Payments. (a) Each Lender and Letter of Credit Issuer hereby agrees that (i) if any the Administrative Agent notifies such Lender or Letter of Credit Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Letter of Credit Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Letter of Credit Issuer (whether or not known to such Lender or Letter of Credit Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Letter of Credit Issuer shall promptly, but in no event later than one (1) Business Day thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender or Letter of Credit Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) Section 13.28 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender and Letter of Credit Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (xi) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (yii) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based be on “discharge for value” or any similar doctrine. Each Lender agrees thatnotice, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return that an error has been made with respect to such Agent the amount Payment. Each Lender and Letter of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.-169-
(c) The Borrower and each other Loan Credit Party hereby agrees that (xi) in the event an Erroneous erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Letter of Credit Issuer with respect to such amount and (yii) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; exceptprovided that this Section 13.28 shall not be interpreted to increase (or accelerate the due date for), in each caseor 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 Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (i) and (ii) 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 the Administrative Agent from from, or on behalf of (including through the exercise of remedies under any Credit Document), the Borrower or any other Loan Party for the purpose of making such Erroneous Paymenta payment on the Obligations.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Sources: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) for the avoidance of doubt, an Erroneous Payment shall not be deemed to pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower or any other Loan Party; except, in each case, hereunder if the Borrower has not made a payment to the extent such Erroneous Payment is, and solely with Administrative Agent in respect to the amount of such Erroneous Payment that is, comprised of funds received by such Agent from obligations in accordance with the Borrower or any other Loan Party for the purpose of making such Erroneous Paymentterms hereof.
(d) Each party’s obligations under this Section 9.22 7.11 shall survive the resignation or replacement of the AgentsAdministrative Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations obligations hereunder (or any portion thereof)) under any Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Ohio Power Co)
Erroneous Payments. (a) 1. Each Lender Purchaser hereby agrees that (i) if any Agent the Administrator notifies such Lender Purchaser that such Agent the Administrator has determined in its sole discretion that any funds received by such Lender Purchaser from such Agent the Administrator or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender Purchaser (whether or not known to such Lender) Purchaser (whether as a payment, prepayment or repayment of principalCapital, interestDiscount, fees or otherwise); individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender Purchaser shall promptly, but in no event later than one Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous 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 Lender Purchaser to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender Purchaser shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Agent the Administrator for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent the Administrator to any Lender Purchaser under this clause (a) shall be conclusive, absent manifest error.
(b) 2. Without limiting immediately preceding clause (a), each Lender Purchaser hereby further agrees that if it receives an Erroneous Payment from any Agent the Administrator (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such Agent the Administrator (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender Purchaser further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Purchaser shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent the Administrator of such occurrence and, upon demand from such Agentthe Administrator, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such Agent the Administrator the amount of any such Erroneous 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) that was received by such Lender Purchaser to the date such amount is repaid to such Agent the Administrator in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by such Agent the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) 3. The Borrower Seller and each other Loan Party Servicer hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrator shall be subrogated to all the rights of such Lender Purchaser with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Seller or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations Servicer (or any portion Affiliate thereof).
Appears in 1 contract
Erroneous Payments. (a) Each If all or any part of any distribution by or on behalf of the Administrative Agent to any Lender hereby agrees that (i) if any or other recipient of distributions under this Agreement is determined by the Administrative Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by to have been made in error, whether known to the recipient or not, or if such Lender or other recipient is not otherwise entitled to receive such distribution under the provisions of this Agreement at such time and in such amount from the Administrative Agent as determined by the Administrative Agent in its sole discretion (any such distribution, an “Erroneous Distribution”), then the relevant Lender or other recipient shall forthwith on demand repay to the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, an amount equal to such Erroneous Distribution made to such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, other recipient in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (amount was made available by or portion thereof) was received by on behalf of the Administrative Agent to such Lender or other recipient to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of a rate equal to the Federal Funds Rate and a rate determined by Rate. Each Lender that fails to return such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) amounts to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause within three (a3) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of Business Days after receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such notice shall be a Defaulting Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrineall purposes under this Agreement. Each Lender agrees that, in each such case, it shall promptly (and, in and other recipient of distributions hereunder hereby authorizes the Administrative Agent to set off and apply any and all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return amounts at any time owing to such Agent the amount Lender or other recipient of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower distributions under this Agreement or any other Loan Party; except, in each case, Document against any amount due to the extent such Administrative Agent. Any determination by the Administrative Agent that all or a portion of any distribution was an Erroneous Payment is, Distribution shall be conclusive absent manifest error. Each Lender and solely with respect to the amount other recipient of such Erroneous Payment that is, comprised distributions hereunder irrevocably waives any claim of funds received by such Agent from the Borrower or discharge for value and any other Loan Party for the purpose claim of making such entitlement to, or in respect of, any Erroneous PaymentDistribution.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each Lender hereby agrees that (ix) if any the Administrative Agent notifies such Lender ▇▇▇▇▇▇ that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender ▇▇▇▇▇▇ from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (aSection 9.21(a) shall be conclusive, absent manifest error.
(ba) Without limiting immediately preceding clause (a), each Each Lender hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafterthereafter (or such later date as the Administrative Agent, may, in its sole discretion, specify in writing), return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cb) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(dc) Each party’s obligations under this Section 9.22 9.21(d) shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Erroneous Payments. (a) Each Lender and each Letter of Credit Issuer hereby agrees that (ix) if any the Administrative Agent notifies such Lender or Letter of Credit Issuer that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Letter of Credit Issuer from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Letter of Credit Issuer (whether or not known to such Lender or Letter of Credit Issuer), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Letter of Credit Issuer shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Letter of Credit Issuer shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender or any Letter of Credit Issuer under this clause (a) Section 12.15 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), Each Lender and each Lender Letter of Credit Issuer hereby further agrees that if it receives an Erroneous a Payment from any the Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender and each Letter of Credit Issuer agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Letter of Credit Issuer shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Letter of Credit Issuer to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds NYFRB Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees parties hereto agree that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Letter of Credit Issuer that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender or Letter of Credit Issuer with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Credit Party; exceptprovided that this Section 12.15 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Obligations owed by 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 the Administrative Agent; provided further that, for the avoidance of doubt, the immediately preceding subclauses (x) and (y) shall not apply to the extent any such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised of funds received by such the Administrative Agent from or at the direction of the Borrower or any other Loan Credit Party for application to pay, prepay, repay, discharge or otherwise satisfy the purpose of making such Erroneous PaymentObligations (or any portion thereof).
(d) Each party’s obligations under this Section 9.22 12.15 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or Letter of Credit Issuer, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or under any portion thereof)Credit Document.
Appears in 1 contract
Sources: Credit Agreement (Figma, Inc.)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any the Administrative Agent notifies such Lender that such the Administrative Agent has determined in its sole discretion that any funds received by such Lender ▇▇▇▇▇▇ from such the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; ), individually and collectively, a an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Administrative Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) . Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Administrative Agent (or any of its Affiliates) (xi) that is in an amount different than (other than a different amount thande minimis difference), or on a different date from, that specified in a notice of payment sent by such the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice that, in each such case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Administrative Agent of such occurrence and, upon demand from such the Administrative Agent, it shall promptly, but in all events no event later than one (1) Business Day thereafter, return to such the Administrative Agent the amount of any such Erroneous 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) that was received NAI-1539367892v12 by such Lender to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by such the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) . The Borrower and each other Loan Party hereby agrees agree that (xi) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (yii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; exceptprovided that this Section 8.02 shall not be interpreted to increase (or accelerate the due date for), in each caseor have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower 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 the Administrative Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (i) and (ii) 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 the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(d) . Each party’s obligations under this Section 9.22 8.02 shall survive the resignation or replacement of the AgentsAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document. Notwithstanding anything to the contrary contained herein or in any other loan document, no Loan Party nor any of their respective Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 8.02 in respect of any Erroneous Payment.
Appears in 1 contract
Sources: Revolving Credit Agreement (Cooper Companies, Inc.)
Erroneous Payments. (a) Each Lender and other Secured Party hereby agrees that (ix) if any Administrative Agent notifies such Lender or Secured Party that such Administrative Agent has determined in its sole discretion that any funds received by such Lender or Secured Party from such Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) were erroneously transmitted to such Lender or Secured Party (whether or not known to such Lender or Secured Party), and demands the return of such Erroneous Payment (or a portion thereof), such Lender or Secured Party shall promptly, but in no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect effect, and (iiy) to the extent permitted by applicable law, such Lender or Secured Party shall not assert any right or claim to the Erroneous Paymentassert, and hereby waives, as to such Administrative Agent, any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any such Administrative Agent to any Lender or Secured Party under this clause (a) Section 9.17 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Each Lender or Secured Party hereby further agrees that if it receives an Erroneous a Payment from any such Administrative Agent (or any of its Affiliates) Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an a “Erroneous Payment Notice”), ) or (y) that was not preceded or accompanied by an Erroneous a Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part)it shall be on notice, in each such case, that an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender or Secured Party agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender or Secured Party shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Administrative Agent of such occurrence and, upon demand from such Administrative Agent, it shall promptly, but in all events no event later than one Business Day thereafter, return to such Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received)funds, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender or Secured Party to the date such amount is repaid to such the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous erroneous Payment (or portion thereof) is are not recovered from any Lender or Secured Party that has received such Erroneous Payment (or portion thereof) for any reason, the Agents such Administrative Agent shall be subrogated to all the rights of such Lender or Secured Party with respect to such amount and (y) an Erroneous erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; , except, in each case, to the extent such Erroneous erroneous Payment is, and solely with respect to the amount of such Erroneous erroneous Payment that is, comprised 216 of funds received by such the Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous erroneous Payment. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (c) will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
(d) Each party’s obligations under this Section 9.22 Section 9.17 shall survive the resignation or replacement of any Administrative Agent or any transfer of rights or obligations by, or the Agentsreplacement of, a Lender or Secured Party, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document Obligations (or any portion thereof)Document.
Appears in 1 contract
Sources: Credit Agreement (Farfetch LTD)
Erroneous Payments. (a) Each Lender hereby agrees that (i) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of setoff or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.. 151
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by an Erroneous Payment Notice, or (z) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has been made (and that it is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to such Agent the amount of any such Erroneous 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 Lender to the date such amount is repaid to such Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 shall survive the resignation or replacement of the Agents, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof).
Appears in 1 contract
Erroneous Payments. (a) Each The Lender hereby agrees that (i) if any the Collateral Agent notifies in writing such Lender that such the Collateral Agent has determined in its sole discretion that any funds received by such Lender from such the Collateral Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof) (provided, that, without limiting any other rights or remedies (whether at law or in equity), the Collateral Agent may not make any such demand under this clause (a)(i) with respect to an Erroneous Payment unless such demand is made within two (2) Business Days of the date of receipt of such Erroneous Payment by the Lender), such Lender shall promptly, but in no event later than one two (2) Business Day thereafterDays after receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made, in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, waives any claim, counterclaim, defense or right of setoff set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of any the Collateral Agent to any Lender under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from any the Collateral Agent (or any of its Affiliates) (xi) that is in a different amount than, or on a different date from, that specified in a written notice of payment sent by such the Collateral Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), (yii) that was not preceded or accompanied by an Erroneous Payment Notice, or (ziii) that such Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, an error has shall have been presumed to have been made (and that it is deemed absent written confirmation from the Collateral Agent to have knowledge of such error at the time of receipt of such Erroneous Paymentcontrary) with respect to such Erroneous Payment, and to the extent permitted by applicable law, such Lender shall not assert any right or claim to the Erroneous Payment, and such Lender hereby waives, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such the Collateral Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. Each Lender agrees that, in each such case, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify such the Collateral Agent of such occurrence and, upon demand from such the Collateral Agent, it shall promptly, but in all events no later than one Business Day thereafterafter receipt of such written demand, return to such the Collateral Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a written demand was made in same day funds (in the currency so received), together with with, if identified in such written demand, interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such the Collateral Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by such the Collateral Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower Borrowers and each other Loan Party hereby agrees agree that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agents Collateral Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower Borrowers or any other Loan Party; except, in each case, to the extent 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 Loan Party for the purpose of making such Erroneous Payment.
(d) Each party’s obligations under this Section 9.22 9.13 shall survive the resignation or replacement of the AgentsCollateral Agent, the termination of the Commitments or the repayment, satisfaction or discharge of all Loan Document Obligations (or any portion thereof)) under any Loan Document.
Appears in 1 contract