Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error. (b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case: (i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and (ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b). (c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement. (d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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. (e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment. (f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person (other than Holdings or any of its Subsidiaries) who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.19 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Letter of Credit Issuer, Secured Party or any Person (other than Holdings or any of its Subsidiaries) who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Letter of Credit Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b12.19(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.19(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.19(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby (i) authorizes and agrees solely with the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts (“Unpaid Obligations”), against any amount due that the Administrative Agent has demanded to be returned under immediately preceding clause (a), (ii) authorizes the Administrative Agent to withhold (and hereby assigns to the Payor under Administrative Agent for the benefit of the Lenders, Letter of Credit Issuers and Secured Parties that are not Payment Recipients in respect of Erroneous Payments or have not failed to comply with Section 12.08(a12.19(a) (the “Underpaid Lender Parties”)) any amounts received by it in respect of such Unpaid Obligations from such Lender, Letter of Credit Issuer or under Secured Party and (iii) authorizes the indemnification provisions Administrative Agent to distribute amounts received in respect of this Agreementsuch Unpaid Obligations to Underpaid Lender Parties, in each case, for so long as and until the Underpaid Lender Parties and the Payment Recipient have been restored to the respective pro rata positions they would have held if such Erroneous Payment had not been made or had been immediately returned (consistent with Section 13.8).
(d) (i) In the event that an Erroneous Payment (or portion thereof) that was not made with funds provided by the Borrower (and the Borrower has not in fact made such payment, prepayment or repayment) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clauses (a), (b), or (c) from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the Administrative Agent and such Lender), but in all respects only if consented to by the Borrower to the extent required under Section 13.6, (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee and such Lender shall be deemed deliver any Notes evidencing such Loans to acquire the Erroneous Payment Deficiency Assignment and Borrower or the Administrative Agent (iiibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (C) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (D) the Administrative Agent (but not, for the avoidance of doubt, the Borrower) shall be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 2 contracts
Sources: Credit Agreement (MultiPlan Corp), Credit Agreement (MultiPlan Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 (except to the extent waived in writing by the Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(ba) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(cb) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) 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 may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform an electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Borrower or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(eii) Subject to Section 8.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(d) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrower’s obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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 Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the Borrower for the purpose of making such Erroneous Payment.
(fe) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(gf) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) under any Facility Documentof the Borrower hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Autodesk, Inc.), Credit Agreement (Autodesk, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 8.12 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, or any Person who has received funds on behalf of a Lender, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part, then) in each such case:
(i) an error may have been made (A) it acknowledges and agrees that in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documenthereunder, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor thereof in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform as to which the Payor and such parties are participantsPlatform) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Borrower or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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 LenderLender and (iv) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment and (v) the Administrative Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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. The Administrative Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Advances that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 8.12 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 8.12 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Loan Document.
Appears in 2 contracts
Sources: Fifth Amendment to Credit Agreement (Science Applications International Corp), Credit Agreement (Science Applications International Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or Each Lender and any other party hereto hereby severally agrees that if (i) the Administrative Agent notifies (a “Payor”which such notice shall be conclusive absent manifest error) notifies a such Lender or Secured Party, or any other Person who that has received funds from the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender or Secured Party (any each such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Payment Recipient) or other Payment Recipient on its behalf(ii) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor the amount of receives 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) payment from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, as applicable, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted, transmitted or received, received in error or by mistake (in whole or in part) then, in each case:
(i) , an error may in payment shall be presumed to have been made (any such amounts specified in the case of immediately preceding clauses (xi) or (yii) of this Section 10.14(a)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such , whether received as a payment, prepayment or repaymentrepayment of principal, interest, fees, distribution or otherwise; and
(ii) individually and collectively, an “Erroneous Payment”), then, in each case, such Payment Recipient shall promptly (and, in all events, within one Business Day of its is deemed to have knowledge of such error) notify error at the Payor time of its receipt of such payment, prepayment Erroneous Payment; provided that nothing in this Section shall require the Administrative Agent to provide any of the notices specified in clauses (i) or repayment, the details thereof and (ii) above. Each Payment Recipient agrees that it is so notifying shall not assert any right or claim to any 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 the Payor pursuant to this Section 12.08(bAdministrative Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such occurrence.
(c) Each Lender In the case of either clause (a)(i) or Secured Party hereby authorizes (a)(ii) above, such Erroneous Payment shall at all times remain the Payor to set off, net property of the Administrative Agent and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable shall be segregated by the Payor to Payment Recipient and held in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such Lender or Secured Party from Payment Recipient shall (or, shall cause any sourcePerson who received any portion of an Erroneous Payment on its behalf to), against any amount due promptly, but in all events no later than one Business Day thereafter, return to the Payor under Section 12.08(aAdministrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or under portion thereof) was received by such Payment Recipient to the indemnification provisions date such amount is repaid to the Administrative Agent at the greater of this Agreementthe Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (c), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any is a Payment Recipient who received such Erroneous or an Affiliate of a Payment (or portion thereof) on its respective behalf) Recipient (such unrecovered amountamount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the sole discretion of the Administrative Agent and upon the PayorAdministrative Agent’s request written notice to such Lender at any time, (i) such Lender shall be deemed to have assigned made a cashless assignment of the full face amount of the portion of its Advances Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative Agent or, at the option of the Administrative Agent, the Administrative Agent’s applicable lending affiliate in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with on such assigned amount, without further consent or approval of any assignment fee to be waived party hereto and without any payment by the Payor in such instance), and is hereby (together with Administrative Agent or its applicable lending affiliate as the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to assignee of such Erroneous Payment Deficiency Assignment. The parties hereto acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment or other consideration paid by the applicable assignee or received by the assignor, (ii2) the Payor as provisions of this clause (d) shall govern in the assignee Lender event of any conflict with the terms and conditions of Section 11.06 and (3) the Administrative Agent may reflect such assignments in the Register without further consent or action by any other Person.
(e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent (1) shall be deemed subrogated to acquire all the Erroneous rights of such Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor as the assignee Lender shall become a Lender hereunder Recipient with respect to such Erroneous Payment Deficiency Assignment amount and the assigning Lender shall cease (2) is authorized to be a Lender hereunder with respect set off, net and apply any and all amounts at any time owing to such Erroneous Payment Deficiency AssignmentRecipient under any Loan Document, excludingor otherwise payable or distributable by the Administrative Agent to such Payment Recipient from any source, for against any amount due to the avoidance of doubt, its obligations Administrative Agent under this Section 10.14 or under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender. For Agreement, (y) the avoidance receipt 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.
(e) The parties hereto agree that an Erroneous Payment by a Payment Recipient shall not payfor the purpose of this Agreement be treated as a payment, prepayprepayment, repayrepayment, discharge or otherwise satisfy other satisfaction of any Obligations owed by the BorrowerBorrower 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making a payment on the Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such Erroneous Paymentpayment or satisfaction had never been received.
(f) 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 Payor 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, agreements and waivers obligations under this Section 12.08 10.14 shall survive the resignation or replacement of the Payor, Administrative Agent or any transfer of rights right or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
(g) Nothing in this Section 10.14 will constitute a waiver or release of any claim of the Administrative Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.
Appears in 2 contracts
Sources: Credit Agreement (Fox Factory Holding Corp), Credit Agreement (Fox Factory Holding Corp)
Recovery of Erroneous Payments. Notwithstanding anything to the contrary in this Agreement, if at any time Administrative Agent determines (ain its sole and absolute discretion) If that it has made a payment hereunder in error to any Lender, or other secured party, whether or not in respect of an Obligation due and owing by the Collateral Agent or Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each such Person receiving a Rescindable Amount severally agrees to repay to the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds forthwith on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that demand the Payor has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds Rescindable Amount received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such Person in immediately available funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was Rescindable Amount is received by such Payment Recipient it to but excluding the date of payment to the date such amount is repaid to the Payor in same day funds Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time compensation. Each Lender and each other secured party 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. A notice respect of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aa debt owed by another), each Payment Recipient hereby further agrees that if it receives a payment“good consideration”, prepayment “change of position” or repayment similar defenses (whether received as a payment, prepayment at law or repayment of principal, interest, fees, distribution or otherwisein equity) from the Payor (or to its obligation to return any of its Affiliates) (x) that is in a different amount thanRescindable Amount. The Administrative Agent shall inform each Lender, or on a different date fromother secured party, that specified in received a notice of payment, prepayment or repayment sent by the Payor (or Rescindable Amount promptly upon determining that any of its Affiliates) with respect payment made to such paymentPerson comprised, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) a Rescindable Amount. Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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 partyPerson’s obligations, agreements and waivers under this Section 12.08 9.12 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Franklin Street Properties Corp /Ma/), Credit Agreement (Franklin Street Properties Corp /Ma/)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured any Credit Party, or any Person who has received funds on behalf of a Lender or Secured Credit Party (any such Lender, Secured Credit Party or other recipientrecipient (excluding, for the avoidance of doubt, the Parent Guarantor and its Subsidiaries and their Affiliates), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 10 Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be held in trust for the benefit of the Administrative Agent, and such Lender or Secured Credit Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.12(b).
(c) Each Lender or Secured Credit Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Credit Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Credit Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender Credit Party that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender Credit Party at any time, (i) such Lender Credit Party shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Credit Party shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Credit Party 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 LenderCredit Party and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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 Credit Party shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Credit Party (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 Credit Party 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Credit Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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, 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 the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawLaws, 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.12 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a LenderAdministrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Ferguson Enterprises Inc. /DE/), Credit Agreement (Ferguson PLC)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, L/C Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b10.14(b).
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aclause (a) hereof or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a)clause (a) hereof, from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender or L/C Issuer at any time, (i) such Lender or L/C Issuer shall be deemed to have assigned its Advances 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to the Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or L/C Issuer shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning L/C Issuer shall cease to be a Lender or L/C Issuer, as applicable, 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 LenderLender or assigning L/C Issuer and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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 or L/C Issuer shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or L/C Issuer (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 or L/C Issuer 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, L/C Issuer or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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) doctrine Each party’s obligations, agreements and waivers under this Section 12.08 10.14 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (ironSource LTD), Credit Agreement (ironSource LTD)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party (any such Lender, Issuing Lender, Swingline Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Swingline Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender, Swingline Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.15(b).
(c) Each Lender, Issuing Lender, Swingline Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender, Swingline Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender, Issuing Lender, Swingline Lender or Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aclause (a) hereof or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a)clause (a) hereof, from any Lender, Issuing Lender or Swingline Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender, Issuing Lender or Swingline Lender at any time, (i) such Lender, Issuing Lender or Swingline Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to an Approved Electronic Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender, Issuing Lender or Swingline Lender shall deliver any Notes evidencing such Loans to Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Lender or assigning Swingline Lender shall cease to be a Lender, Issuing Lender or Swingline Lender, as applicable, 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, assigning Issuing Lender or assigning Swingline Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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, Issuing Lender or Swingline Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender, Issuing Lender or Swingline 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, Issuing Lender or Swingline 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, Issuing Lender, Swingline Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.15 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, Swingline Lender or Issuing Lender, or the termination Discharge of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility DocumentObligations.
Appears in 2 contracts
Sources: Credit Agreement (Appian Corp), Credit Agreement (Appian Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (which, for the avoidance of doubt, excludes the Loan Parties and their Subsidiaries, except to the extent such Loan Party or Subsidiary is acting in its capacity as, or on behalf of, a Lender, Issuing Bank or Secured Party), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Issuing Bank or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each . If a Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (otherwise and does not receive a corresponding payment notice or any of its Affiliates) (x) that is in a different amount thanpayment advice, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, shall be presumed to be in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in absent written confirmation from the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due Administrative Agent to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreementcontrary.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyCreditors, or any Person who has received funds on behalf of a Lender or Secured Party Creditor (any such Lender, Secured Party Creditor or other recipientrecipient (and each of their respective successors and assigns), but in any event excluding the Credit Parties and their Affiliates, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Creditor or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.15 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Creditor shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error. For the avoidance of doubt, no Credit Party shall constitute a Payment Recipient.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Recipient, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one (1) Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b12.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Payment Recipient hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Payment Recipient under any Facility Credit Document, or otherwise payable or distributable at any time held by or on behalf of the Payor Administrative Agent (or its Affiliates, including by branches and agencies of the Administrative Agent, wherever located) for the account of such Payment Recipient under any Credit Document with respect to such Lender any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after written demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) of the relevant Tranche 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to a Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 13.04, the Administrative 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 Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Creditor, to the rights and interests of such Lender or Secured Creditor, as the case may be) under the Credit Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Credit Parties’ Obligations under the Credit Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Credit Party; provided that this Section 12.15 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 12.15 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Credit Document.
(h) Notwithstanding anything to the contrary herein or in any other Credit Document, no Credit Party nor any of their respective Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 12.15 in respect of any Erroneous Payment.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, L/C Issuer or other Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or other Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)clause (b) of this Section) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this clause (b) of Section 12.08(b)9.13.
(c) Each Lender Lender, L/C Issuer or other Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or other Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or other Secured Party from any source, against any amount due to the Payor Administrative Agent under clause (a) of Section 12.08(a) 9.13 or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Credit Agreement (DocGo Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Partyany Issuing Bank, or any other Person who has received funds on behalf of a Lender or Secured Party any Issuing Bank (any such Lender, Secured Party any Issuing Bank or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such LenderPayment Recipient), Secured Party or other Payment Recipient on its behalf) (any where such fundspayment, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwiseotherwise (any such funds, individually and collectively, an a “Erroneous PaymentRescindable Amount”) ), and demands the return of such Erroneous Payment Rescindable Amount (or a portion thereof), such Erroneous Payment Rescindable Amount shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one (1) Business Day thereafter, return to the Payor the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was madeAdministrative Agent, in same day funds (in the currency so received), the amount of any such Rescindable Amount (or portion thereof), together with interest thereon in respect of each day from and including the date such Erroneous Payment Rescindable Amount (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor in same day funds Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with prevailing banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment payment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, or (y) that was not preceded or accompanied by a Payment Noticenotice of payment sent by the Administrative Agent (or any of its Affiliates), or (z) that such then, said Payment Recipient otherwise becomes aware was transmittedshall be on notice, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or , that an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
. Each Payment Recipient agrees that, in each such case, or if it otherwise becomes aware a Rescindable Amount (iior portion thereof) may have been sent in error, such Payment Recipient shall promptly (notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in all events, within no event later than one (1) Business Day thereafter, return to the Administrative Agent the amount of its knowledge any such Rescindable Amount (or portion thereof) in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such errorpayment (or portion thereof) notify was received by such Payment Recipient to the Payor date such amount is repaid to the Administrative Agent, at the greater of its receipt of such payment, prepayment or repayment, the details thereof Federal Funds Effective Rate and that it is so notifying a rate determined by the Payor pursuant Administrative Agent in accordance with prevailing banking industry rules on interbank compensation from time to this Section 12.08(b)time in effect.
(c) Each Lender or Secured Party Payment Recipient hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Payment Recipient under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Payment Recipient from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aany of the immediately preceding clauses (b) or (c) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment that a Rescindable Amount (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) Administrative Agent (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, Borrower and each other Loan Party hereby agrees that (ix) such Lender the Administrative Agent shall be deemed subrogated to have assigned its Advances (but not its Commitments) all the rights of such Payment Recipient with respect to such amount (including, without limitation, the right to sell and assign the Loans (or any portion thereof), which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal were subject to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not CommitmentsDeficiency) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Rescindable Amount. For the avoidance of doubt, no assignment of an Erroneous PaymentPayment Return Deficiency will reduce the Commitments of any Payment Recipient 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to the assignment of an Erroneous Payment Return Deficiency, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Payment Recipient under the Loan Documents with respect to each Erroneous Payment Return Deficiency (for the avoidance of doubt, without increasing the Obligations owed by the Borrower or any other Loan Party with respect to the Erroneous Payment Return Deficiency).
(e) [Reserved].
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Paymenta Rescindable Amount, 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 Payor Administrative Agent for the return of any Erroneous Payment Rescindable Amount received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) This Section 8.15 shall solely be an agreement between the Administrative Agent, the Lenders and the Issuing Banks. Each party’s obligations, agreements and waivers under this Section 12.08 8.15 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or an Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Ww International, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion Five-Year Credit Agreement 61 (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 2.21 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ obligations under this Agreement in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerCompany or any other Borrower under this Agreement; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe obligations of any Borrower relative to the amount (and/or timing for payment) of such obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) of the Borrowers under any Facility Documentthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party (any such Lender, Issuing Lender, Swingline Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Swingline Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender, Swingline Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
: (i) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.12(b).
(c) Each Lender, Issuing Lender, Swingline Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.such
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a)clause (a) hereof, from any Lender, Issuing Lender or Swingline Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender, Issuing Lender or Swingline Lender at any time, (i) such Lender, Issuing Lender or Swingline Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to an Approved Electronic Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender, Issuing Lender or Swingline Lender shall deliver any Notes evidencing such Loans to Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Lender or assigning Swingline Lender shall cease to be a Lender, Issuing Lender or Swingline Lender, as applicable, 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, assigning Issuing Lender or assigning Swingline Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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, Issuing Lender or Swingline Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender, Issuing Lender or Swingline 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, Issuing Lender or Swingline 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, Issuing Lender, Swingline Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.Erroneous
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.12 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, Swingline Lender or Issuing Lender, or the termination Discharge of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Document.Obligations. Cash
Appears in 1 contract
Sources: Credit Agreement (Yext, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyIssuing Bank, or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank or other recipient, a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Agent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of (x) (A) the Federal Funds Rate in the case of Advances denominated in Dollars or (B) the cost of funds incurred by the Agent in respect of such amount in the case of Advances denominated in Committed Currencies and (y) a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Credit Agreement (Jabil Inc)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, Purchaser or any Person who has received funds on behalf of a Lender or Secured Party Purchaser (any such Lender, Secured Party or other recipientPerson, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Purchaser or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof) in writing (provided that, without limiting any other rights or remedies (whether at law or in equity), the Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 30 days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Purchaser shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient Purchaser, or any Person who has received funds on behalf of a Purchaser, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Purchaser, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Purchaser shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.11(b).
(c) Each Lender or Secured Party Purchaser hereby authorizes the Payor Administrative Agent to set set-off, net and apply any and all amounts at any time owing to such Lender or Secured Party Purchaser under any Facility Transaction Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Purchaser from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a9.11(a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a9.11(a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) behalf (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender Purchaser at any time, (i) such Lender Purchaser shall be deemed to have assigned its Advances interests in the Receivable Interests (but not its CommitmentsCommitment) 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 Administrative Agent may specify) (such assignment of interests in the Advances Receivable Interests (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the BorrowerSeller) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Agreement with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender Purchaser shall become a Lender Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a Lender Purchaser 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 Commitment which shall survive as to such assigning LenderPurchaser and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Receivable Interests subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any interest in the Receivable Interests acquired pursuant to an Erroneous Payment Deficiency Assignment to an Eligible Assignee subject to the terms and conditions with respect to assignment of interests in the Receivable Interests set forth herein and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Purchaser shall be reduced by the net proceeds of the sale of such interest in the Receivable Interests (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Purchaser (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 Commitment of any Lender Purchaser and such Commitments Commitment shall remain available in accordance with the terms of this Agreement.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Aggregate Unpaids owed by the BorrowerSeller or any other Seller 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 the Payor Administrative Agent from the Borrower Seller or any other Seller Party for the purpose of making such Erroneous Paymentreducing the Aggregate Unpaids.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.11 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations Aggregate Unpaids (or any portion thereof) under any Facility Transaction Document.
Appears in 1 contract
Sources: Omnibus Amendment (Pool Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 10.14 and held in trust for the benefit of the Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereaftertwo (2) Banking Days thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 (except to the extent waived in writing by the Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Issuing Lender, Secured Party or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Issuing Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Issuing Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business (1) Banking Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b10.14(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 10.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its CommitmentsCommitments ) 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 may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to the applicable Platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 11.8 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the 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 shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party, to the rights and interests of such Lender, Issuing Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 10.14 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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 Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 10.14 shall survive the resignation or replacement of the PayorAgent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Viasat Inc)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error. For the avoidance of doubt, neither the Borrower nor any other Loan Party shall constitute a Payment Recipient.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party (any such Lender, Issuing Lender, Swingline Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Swingline Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender, Swingline Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.14(b).
(c) Each Lender, Issuing Lender, Swingline Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender, Swingline Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender, Issuing Lender, Swingline Lender or Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aclause (a) hereof or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a)clause (a) hereof, from any Lender, Issuing Lender or Swingline Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender, Issuing Lender or Swingline Lender at any time, (i) such Lender, Issuing Lender or Swingline Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to a Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender, Issuing Lender or Swingline Lender shall deliver any Notes evidencing such Loans to Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Lender or assigning Swingline Lender shall cease to be a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, excluding its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender, assigning Issuing Lender or assigning Swingline Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. For The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the avoidance proceeds of doubtsuch sale, no the Erroneous Payment Return Deficiency owing by the applicable Lender, Issuing Lender or Swingline Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender, Issuing Lender or Swingline Lender (and/or against any recipient that receives funds on its respective behalf). No Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender, Issuing Lender or Swingline 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, Issuing Lender, Swingline Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.14 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, Swingline Lender or Issuing Lender, or the termination Discharge of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility DocumentObligations.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Pagaya Technologies Ltd.)
Recovery of Erroneous Payments. (a) If the Collateral Administrative Agent or the Administrative Collateral Agent (a “Payor”x) notifies a DIP Lender or Secured Party, or any Person who has received funds on behalf of a DIP Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent or the Collateral Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent or the Collateral Agent) received by such Payment Recipient from the Payor Administrative Agent or the Collateral Agent or any of its respective Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent or the Collateral Agent, as applicable, pending its return or repayment as contemplated below in this Section 9.15 and held in trust for the benefit of the Administrative Agent or the Collateral Agent, as applicable, and such DIP Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Administrative Agent or the Collateral Agent, as applicable, may, in its sole discretion, specify in writing), return to the Payor Administrative 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 (except to the extent waived in writing by the Administrative Agent or the Collateral Agent, as applicable) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Administrative Agent or the Collateral Agent, as applicable, in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent or the Collateral Agent, as applicable, in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent or the Collateral Agent, as applicable, to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient hereby further DIP Lender, Secured Party or any Person who has received funds on behalf of a DIP Lender or Secured Party (and each of their respective successors and assigns), agrees that if it (or a Payment Recipient on its behalf) receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent or the Collateral Agent (or any of its respective Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent or the Collateral Agent, as applicable (or any of its respective Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent or the Collateral Agent, as applicable (or any of its respective Affiliates), or (z) that such Payment Recipient DIP Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent or the Collateral Agent, as applicable, to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient DIP Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent or the Collateral Agent, as applicable, of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent or the Collateral Agent, as applicable, pursuant to this Section 12.08(b9.15(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent or the Collateral Agent pursuant to this Section 9.15(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.15(a) or on whether or not an Erroneous Payment has been made.
(c) Each DIP Lender or Secured Party hereby authorizes the Payor Administrative Agent and the Collateral Agent to set off, net and apply any and all amounts at any time owing to such DIP Lender or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent or the Collateral Agent to such DIP Lender or Secured Party under any Credit Document or from any source, other source against any amount due that the Administrative Agent or the Collateral Agent has demanded to the Payor under Section 12.08(a) or be returned under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent or the Collateral Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent or the Collateral Agent, as applicable, shall be subrogated to all the rights and interests of such Payment Recipient (or from and, in the case of any Payment Recipient who has received funds on behalf of a DIP Lender or Secured Party, to the rights and interests of such Erroneous Payment (DIP Lender or portion thereofSecured Party, as the case may be) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon under the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) Credit Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Credit Party; provided that this Section 9.15 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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 or the Collateral Agent; provided, further, that for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent or the Collateral Agent from the Borrower for the purpose of making such Erroneous Payment.
(e) Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, in no event shall the occurrence of an Erroneous Payment (or the existence of any Erroneous Payment Subrogation Rights or other rights of the Administrative Agent or the Collateral Agent in respect of an Erroneous Payment) result in the Administrative Agent or the Collateral Agent becoming, or being deemed to be, a DIP Lender hereunder or the holder of any Loans hereunder.
(f) 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 Payor Administrative Agent or the Collateral Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 9.15 shall survive the resignation or replacement of the PayorAdministrative Agent and/or the Collateral Agent, any transfer of rights or obligations by, or the replacement of, a DIP Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Credit Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyIssuing Bank, or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment 84 Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of (x) the Federal Funds Rate in the case of Advances denominated in US Dollars or (ii) the cost of funds incurred by the Administrative Agent in respect of such amount in the case of Advances denominated in Foreign Currencies and (y) a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender and Issuing Bank, and any Person who has received funds on behalf of such Lender or Issuing Bank, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Issuing Bank, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Issuing Bank shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b7.12(b).
(c) Each Lender or Secured Party and Issuing Bank hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Bank under 85 any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Issuing Bank from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender or Issuing Lender at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Advances (but not its Commitments) of the relevant Facility with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted ClassFacility”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted ClassFacility, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the BorrowerBorrowers) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to the Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or Issuing Bank shall deliver any Notes evidencing such Advances to the applicable Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or Issuing Bank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Bank shall cease to be a Lender or Issuing Bank, as applicable, 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 LenderLender or assigning Issuing Bank and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Advances 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 or Issuing Bank shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or Issuing Bank (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 or Issuing Bank 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 Administrative Agent has sold an Advance (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Issuing Bank under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the any Borrower, 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 the Payor Administrative Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 7.12 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations obligations of the Borrowers (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: 5 Year Credit Agreement (Marsh & McLennan Companies, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.13(b). 174721465 For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party (any such Lender, Issuing Lender, Swingline Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Swingline Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender, Swingline Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Issuing Lender, Swingline Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.15(b).
(c) Each Lender, Issuing Lender, Swingline Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender, Swingline Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender, Issuing Lender, Swingline Lender or ny-2508035 Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aclause (a) hereof or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a)clause (a) hereof, from any Lender, Issuing Lender or Swingline Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender, Issuing Lender or Swingline Lender at any time, (i) such Lender, Issuing Lender or Swingline Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to an Approved Electronic Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender, Issuing Lender or Swingline Lender shall deliver any Notes evidencing such Loans to Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender, Issuing Lender or Swingline Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Lender or assigning Swingline Lender shall cease to be a Lender, Issuing Lender or Swingline Lender, as applicable, 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, assigning Issuing Lender or assigning Swingline Lender and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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, Issuing Lender or Swingline Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender, Issuing Lender or Swingline 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, Issuing Lender or Swingline 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, Issuing Lender, Swingline Lender or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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.. ny-2508035
(g) Each party’s obligations, agreements and waivers under this Section 12.08 9.15 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, Swingline Lender or Issuing Lender, or the termination Discharge of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility DocumentObligations.
Appears in 1 contract
Sources: Credit Agreement (Appian Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender, Issuing Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender or Secured Party (any such Lender, Issuing Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 11.18 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Secured Party or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Issuing Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b)11.18. For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.18 shall not have any effect on a Payment Recipient’s obligations pursuant to this Section 11.18 or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender, Issuing Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (or from and, in the case of any Payment Recipient who has received funds on behalf of a Lender, Issuing Lender or Secured Party, to the rights and interests of such Erroneous Payment (Lender, Issuing Lender or portion thereofSecured Party, as the case may be) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon under the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) Loan Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 11.18 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from Administrative Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) . Each party’s obligations, agreements and waivers under this Section 12.08 11.18 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a LenderAdministrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyL/C Issuer, or any Person who has received funds on behalf of a Lender or Secured Party (any L/C Issuer o(any such Lender, Secured Party L/C Issuer or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party L/C Issuer or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party L/C Issuer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person (other than the Borrower or any of its Subsidiaries) who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.19 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Letter of Credit Issuer, Secured Party or any Person (other than the Borrower or any of its Subsidiaries) who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
: (i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).-231- #96562806v11
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby (i) authorizes and agrees solely with the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts (“Unpaid Obligations”), against any amount due that the Administrative Agent has demanded to be returned under immediately preceding clause (a), (ii) authorizes the Administrative Agent to withhold (and hereby assigns to the Payor under Administrative Agent for the benefit of the Lenders, Letter of Credit Issuers and Secured Parties that are not Payment Recipients in respect of Erroneous Payments or have not failed to comply with Section 12.08(a12.19(a) (the “Underpaid Lender Parties”)) any amounts received by it in respect of such Unpaid Obligations from such Lender, Letter of Credit Issuer or under Secured Party and (iii) authorizes the indemnification provisions Administrative Agent to distribute amounts received in respect of this Agreementsuch Unpaid Obligations to Underpaid Lender Parties, in each case, for so long as and until the Underpaid Lender Parties and the Payment Recipient have been restored to the respective pro rata positions they would have held if such Erroneous Payment had not been made or had been immediately returned (consistent with Section 13.8).
(di) In the event that an Erroneous Payment (or portion thereof) that was not made with funds provided by the Borrower (and the Borrower has not in fact made such payment, prepayment or repayment) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clauses (a), (b), or (c) from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the Administrative Agent and such Lender), but in all respects only if consented to by the Borrower to the extent required under Section 13.6, (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee and such Lender shall be deemed deliver any Notes evidencing such Loans to acquire the Erroneous Payment Deficiency Assignment and Borrower or the Administrative Agent (iiibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect -232- #96562806v11
(ii) Subject to such Section 13.6 (but excluding, in all events, any assignment consent or approval requirements (other than from the Borrower)), the Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the assigning proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall cease be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The Administrative Agent, the Lenders and the other Secured Parties agree that irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender hereunder Lender, Letter of Credit Issuer or Secured Party, to the rights and interests of such Lender, Letter of Credit Issuer or Secured Party, as the case may be) under the Credit Documents with respect to such amount (the “Erroneous Payment Deficiency Assignment, excludingSubrogation Rights”); provided that, for the avoidance of doubt, its obligations under this Section 12.19 shall not, and shall not be interpreted to, affect (including to duplicate, increase (or accelerate the indemnification provisions due date for), or have the effect of this Agreement and its applicable Commitments which shall survive as to such assigning Lender. For duplicating, increasing (or accelerating the due date for)) the Obligations of the Borrower or any other Credit Party; provided, further, that 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.
clause (e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, except, in each case, 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 the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense in each case, based on “discharge for value” or any similar doctrine.
(g) Each party’s The obligations, agreements and waivers of the Administrative Agent, the Lenders and the other Secured Parties under this Section 12.08 12.19 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Letter of -233- #96562806v11
(h) Notwithstanding anything to the contrary herein or in any other Credit Document, (x) none of the Borrower or any of its Subsidiaries has acquired or incurred (or will acquire or incur) any obligations or rights under this Section 12.19, (y) the rights and obligations of the Borrower and its Subsidiaries shall not be affected by this Section 12.19 and (z) this Section 12.19 shall solely be an agreement between the Administrative Agent, the termination Lenders and the other Secured Parties, and not the Borrower or any other Subsidiary of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility DocumentBorrower.
Appears in 1 contract
Recovery of Erroneous Payments. Each Lender and any other party hereto hereby severally agrees that if (ai) If the Collateral Agent or the Administrative Agent notifies (a “Payor”which such notice shall be conclusive absent manifest error) notifies a such Lender or Secured Party, or any other Person who that has received funds from the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender or Secured Party (any each such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Payment Recipient) or other Payment Recipient on its behalf(ii) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor the amount of receives 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) payment from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, as applicable, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted, transmitted or received, received in error or by mistake (in whole or in part) then, in each case:
(i) , an error may in payment shall be presumed to have been made (any such amounts specified in the case of immediately preceding clauses (xi) or (yii) of this Section 10.14(a)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such , whether received as a payment, prepayment or repaymentrepayment of principal, interest, fees, distribution or otherwise; and
(ii) individually and collectively, an “Erroneous Payment”), then, in each case, such Payment Recipient shall promptly (and, in all events, within one Business Day of its is deemed to have knowledge of such error) notify error at the Payor time of its receipt of such payment, prepayment or repayment, the details thereof and Erroneous Payment; provided that it is so notifying the Payor pursuant to nothing in this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes shall require the Payor Administrative Agent to set off, net and apply provide any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by of the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor notices specified in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, clauses (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, or (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous above. Each Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree Recipient agrees that an Erroneous Payment it shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an any Erroneous Payment, and hereby waives, and is deemed to waive, waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Payor Administrative Agent for the return of any Erroneous Payment receivedPayments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured any Credit Party, or any Person who has received funds on behalf of a Lender or Secured Credit Party (any such Lender, Secured Credit Party or other recipientrecipient (excluding, for the avoidance of doubt, the Borrower and its Subsidiaries and their Affiliates), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 10 Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be held in trust for the benefit of the Administrative Agent, and such Lender or Secured Credit Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Overnight Bank Funding Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.12(b).
(c) Each Lender or Secured Credit Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Credit Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Credit Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender Credit Party that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender Credit Party at any time, (i) such Lender Credit Party shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Credit Party shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Credit Party shall cease to be a Lender or L/C Issuer, as applicable, 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 LenderCredit Party and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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 Credit Party shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Credit Party (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 Credit Party 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Credit Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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, 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 the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawLaws, 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.12 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a LenderAdministrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (EQT Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, L/C Issuer or other Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or other Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)clause (b) of this Section) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:: (i)
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this clause (b) of Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement9.13.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a)clause (a) of this Section, from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender or L/C Issuer at any time, (i) such Lender or L/C Issuer shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to the Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or L/C Issuer shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning L/C Issuer shall cease to be a Lender or L/C Issuer, as applicable, 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 LenderLender or assigning L/C Issuer and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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 or L/C Issuer shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or L/C Issuer (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 or L/C Issuer 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, L/C Issuer or other Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.or any other Loan Party,
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.13 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Harmonic Inc)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyIssuing Bank, or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank or other recipient, a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(iiB) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor Administrative pursuant to this Section 12.08(b7.11(b).
(c) Each Lender or Secured Party and Issuing Bank hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Bank under any Facility Loan Document, or otherwise payable or distributable by the Payor Agent to such Lender or Secured Party Issuing Bank from any source, against any amount due to the Payor Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform as to which the Payor and such parties are participantsPlatform) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or Issuing Bank shall deliver any Notes evidencing such Advances to the Borrower or the Agent, (ii) the Payor Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender or Issuing Bank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Bank shall cease to be a Lender or Issuing Bank, as applicable, 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 LenderLender or assigning Issuing Bank. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender or Issuing Bank and such Commitments shall remain available in accordance with the terms of this Agreement.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerBorrower hereunder, 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 the Payor Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations of the Borrower’s obligations (or any portion thereof) hereunder or under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or Without limitation of any other provision in this Agreement, if at any timeIf the Administrative Agent (makes a “Payor”payment hereunder in error to(x) notifies any Purchaser or Purchaser Agent (the “Credit Party”), whether or not in respect of an Obligation due and owing by the Seller at such time, where such payment is a Lender or Secured PartyRescindable Amount, or then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in immediately available funds in the currency so received, with interest thereon, foror any Person who has received funds on behalf of a Lender or Secured Credit Party (any such Lender, Secured Credit Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, ,or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Credit Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 11.13 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Credit Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 any yield thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Rescindable Amount isErroneous Payment (or portion thereof) was received by such it to but excludingsuch Payment Recipient to the date such of paymentsuch amount is repaid to the Payor Administrative Agent, in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation compensation. Each Credit 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) or similar defense to its obligation to return any Rescindable Amount. The from time to time in effect. A notice of the Payor Administrative Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable ▇▇▇▇▇▇.▇▇ any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) With respect to any payment that the Administrative Agent makes for the account of any Credit Party hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”) :
(1) the Seller has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Seller (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment. A notice of the Administrative Agent to any Purchaser or Purchaser Agent with respect to any amount owing under this Section 12.08(a) 11.13 shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Credit Party or any Person who has received funds on behalf of a Credit Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Credit Party or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Credit Party shall (and cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b11.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 11.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 11.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Credit Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Credit Party under any Facility Transaction Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Credit Party under any Transaction Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (or from and, in the case of any Payment Recipient who has received funds on behalf of a Credit Party, to the rights and interests of such Erroneous Payment (or portion thereofCredit Party, as the case may be) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon under the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) Transaction Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerSeller; provided that this Section 11.13 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Seller relative to the amount (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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from Administrative Agent from, or on behalf of (including through the Borrower exercise of remedies under any Transaction Document), the Seller for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) To the extent permitted by applicable lawLaw, 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) . Each party’s obligations, agreements and waivers under this Section 12.08 11.13 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderCredit Party, the termination of the applicable Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Transaction Document.
Appears in 1 contract
Sources: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or Each Lender, each other Secured Party and any other party hereto hereby severally agrees that if (i) the Administrative Agent notifies (a “Payor”which such notice shall be conclusive absent manifest error) notifies a such Lender or any other Secured Party (or the Lender Affiliate of a Secured Party, ) or any other Person who that has received funds from the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender or other Secured Party (any each such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Payment Recipient) or other Payment Recipient on its behalf(ii) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor the amount of receives 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) payment from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, as applicable, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or (z) that such Payment Recipient otherwise becomes aware was transmitted, transmitted or received, received in error or by mistake (in whole or in part) then, in each case:
(i) , an error may in payment shall be presumed to have been made (any such amounts specified in the case of immediately preceding clauses (xi) or (yii) of this Section 14.22(a)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such , whether received as a payment, prepayment or repaymentrepayment of principal, interest, fees, distribution or otherwise; and
(ii) individually and collectively, an “Erroneous Payment”), then, in each case, such Payment Recipient shall promptly (and, in all events, within one Business Day of its is deemed to have knowledge of such error) notify error at the Payor time of its receipt of such payment, prepayment Erroneous Payment; provided that nothing in this Section shall require the Administrative Agent to provide any of the notices specified in clauses (i) or repayment, the details thereof and (ii) above. Each Payment Recipient agrees that it is so notifying shall not assert any right or claim to any 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 the Payor pursuant to this Section 12.08(bAdministrative Agent for the return of any Erroneous Payments, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees that, in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such occurrence.
(c) Each Lender In the case of either clause (a)(i) or Secured Party hereby authorizes (a)(ii) above, such Erroneous Payment shall at all times remain the Payor to set off, net property of the Administrative Agent and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable shall be segregated by the Payor to Payment Recipient and held in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such Lender or Secured Party from Payment Recipient shall (or, shall cause any sourcePerson who received any portion of an Erroneous Payment on its behalf to), against any amount due promptly, but in all events no later than one Business Day thereafter, return to the Payor under Section 12.08(aAdministrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made in same day funds and in the currency so received, together with interest thereon in respect of each day from and including the date such Erroneous Payment (or under portion thereof) was received by such Payment Recipient to the indemnification provisions date such amount is repaid to the Administrative Agent at the greater of this Agreementthe Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (c), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any is a Payment Recipient who received such Erroneous or an Affiliate of a Payment (or portion thereof) on its respective behalf) Recipient (such unrecovered amountamount as to such Lender, an “Erroneous Payment Return Deficiency”), then at the sole discretion of the Administrative Agent and upon the PayorAdministrative Agent’s request written notice to such Lender at any time, (i) such Lender shall be deemed to have assigned made a cashless assignment of the full face amount of the portion of its Advances Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative Agent or, at the option of the Administrative Agent, the Administrative Agent’s applicable lending affiliate in an amount that is equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with on such assigned amount, without further consent or approval of any assignment fee to be waived party hereto and without any payment by the Payor in such instance), and is hereby (together with Administrative Agent or its applicable lending affiliate as the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to assignee of such Erroneous Payment Deficiency Assignment. The parties hereto acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without any requirement for any payment or other consideration paid by the applicable assignee or received by the assignor, (ii2) the Payor as provisions of this clause (d) shall govern in the assignee Lender event of any conflict with the terms and conditions of Section 13.2 and (3) the Administrative Agent may reflect such assignments in the Register without further consent or action by any other Person.
(e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent (1) shall be deemed subrogated to acquire all the Erroneous rights of such Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor as the assignee Lender shall become a Lender hereunder Recipient with respect to such Erroneous Payment Deficiency Assignment amount and the assigning Lender shall cease (2) is authorized to be a Lender hereunder with respect set off, net and apply any and all amounts at any time owing to such Erroneous Payment Deficiency AssignmentRecipient under any Loan Document, excludingor otherwise payable or distributable by the Administrative Agent to such Payment Recipient from any source, for against any amount due to the avoidance of doubt, its obligations Administrative Agent under this Section 14.22 or under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender. For Agreement, (y) the avoidance receipt 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.
(e) The parties hereto agree that an Erroneous Payment by a Payment Recipient shall not payfor the purpose of this Agreement be treated as a payment, prepayprepayment, repayrepayment, discharge or otherwise satisfy other satisfaction of any Obligations owed by the BorrowerBorrower 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 the Payor Administrative Agent from the Borrower or any other Loan Party for the purpose of making a payment on the Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such Erroneous Paymentpayment or satisfaction had never been received.
(f) 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 Payor 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, agreements and waivers obligations under this Section 12.08 14.22 shall survive the resignation or replacement of the Payor, Administrative Agent or any transfer of rights right or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
(g) Nothing in this Section 14.22 will constitute a waiver or release of any claim of the Administrative Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.
Appears in 1 contract
Sources: Credit Agreement (Herc Holdings Inc)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the 45 assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 2.20 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ obligations under this Agreement in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerCompany or any other Borrower under this Agreement; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe obligations of any Borrower relative to the amount (and/or timing for payment) of such obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) of the Borrowers under any Facility Documentthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Issuing Bank, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party (and each of their respective successors and assigns) , agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Secured Party shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its CommitmentsCommitments ) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform an electronic communication as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(i) Subject to Section 10.06 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative 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 Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 9.13 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 9.13 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Super Senior Loan Credit Agreement (Altisource Portfolio Solutions S.A.)
Recovery of Erroneous Payments. (a) a. If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, Purchaser or any Person who has received funds on behalf of a Lender or Secured Party Purchaser (any such Lender, Secured Party or other recipientPerson, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Purchaser or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof) in writing (provided that, without limiting any other rights or remedies (whether at law or in equity), the Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 30 days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Purchaser shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) b. Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient Purchaser, or any Person who has received funds on behalf of a Purchaser, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Purchaser, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
ii. such Purchaser shall (iiand shall cause any other recipient that receives funds on its respective behalf to) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.11(b).
(c) c. Each Lender or Secured Party Purchaser hereby authorizes the Payor Administrative Agent to set set-off, net and apply any and all amounts at any time owing to such Lender or Secured Party Purchaser under any Facility Transaction Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Purchaser from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a9.11(a) or under the indemnification provisions of this Agreement.
(d) d. In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a9.11(a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) behalf (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender Purchaser at any time, (i) such Lender Purchaser shall be deemed to have assigned its Advances interests in the Receivable Interests (but not its CommitmentsCommitment) 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 Administrative Agent may specify) (such assignment of interests in the Advances Receivable Interests (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the BorrowerSeller) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Agreement with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender Purchaser shall become a Lender Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a Lender Purchaser 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 Commitment which shall survive as to such assigning LenderPurchaser and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Receivable Interests subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any interest in the Receivable Interests acquired pursuant to an Erroneous Payment Deficiency Assignment to an Eligible Assignee subject to the terms and conditions with respect to assignment of interests in the Receivable Interests set forth herein and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Purchaser shall be reduced by the net proceeds of the sale of such interest in the Receivable Interests (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Purchaser (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 Commitment of any Lender Purchaser and such Commitments Commitment shall remain available in accordance with the terms of this Agreement.
(e) e. The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Aggregate Unpaids owed by the BorrowerSeller or any other Seller 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 the Payor Administrative Agent from the Borrower Seller or any other Seller Party for the purpose of making such Erroneous Paymentreducing the Aggregate Unpaids.
(f) f. 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 Payor Administrative 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) g. Each party’s obligations, agreements and waivers under this Section 12.08 9.11 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations Aggregate Unpaids (or any portion thereof) under any Facility Transaction Document.
h. Nothing referenced in this Section 9.11, including the payment of an Erroneous Payment and the rights and obligations of the parties related thereto under this Section 9.11, shall trigger the Seller Parties’ indemnification obligations hereunder including under Article VIII.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake Three-year Credit Agreement 59 has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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. For , (D) the avoidance of doubt, no Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment Assignment, and (E) the Agent will reduce reflect in the Commitments of any Lender and such Commitments shall remain available Register its ownership interest in accordance with the terms of this Agreement.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, except, in each case, Advances subject 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 setThree-off or recoupment with respect to any demand, claim or counterclaim by the Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.year Credit Agreement 60
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall Five-Year Credit Agreement 52 cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such Five-Year Credit Agreement 53 lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 2.21 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ obligations under this Agreement in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerCompany or any other Borrower under this Agreement; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe obligations of any Borrower relative to the amount (and/or timing for payment) of such obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately Five-Year Credit Agreement 54 preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) of the Borrowers under any Facility Documentthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or, out-of-pocket expenses or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.09(b) and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent AMERICAS/2023810287.92024683232.11 189 Credit Agreement FH11508591.2 (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.09(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.09(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.09(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, AMERICAS/2023810287.92024683232.11 190 Credit Agreement FH11508591.2
(ii) the Payor as the assignee Lender shall be deemed The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to acquire the an Erroneous Payment Deficiency Assignment and (iii) upon receipt of the proceeds of such deemed acquisitionsale, the Payor as Erroneous Payment Return Deficiency owing by the assignee applicable Lender shall become a be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender hereunder (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, except, in each case, to the extent that any such Erroneous Payment isLoans are then owned by the Administrative Agent) and (y) may, and solely with respect in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the amount of such Erroneous Payment that is, comprised of funds received by the Payor applicable Lender from the Borrower for the purpose of making such Erroneous Paymenttime to time.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole reasonable discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.14 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error. For the avoidance of doubt, neither the Borrower nor any other Loan Party shall constitute a Payment Recipient.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.14(b)
(iii) For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after written demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Assumption with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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 LenderLender and (D) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 10.6 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative 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 Administrative Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Secured Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Secured Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 9.14(e) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 9.14 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a LenderAdministrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Secured Obligations (or any portion thereof) under any Facility Loan Document.
(h) Notwithstanding anything to the contrary 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 9.14 in respect of any Erroneous Payment.
Appears in 1 contract
Recovery of Erroneous Payments. Each Lender and each Issuing Lender hereby agrees that (ai) If if the Collateral Agent or the Administrative Agent (a “Payor”) notifies a such Lender or Secured Party, or any Person who has received funds on behalf of a Issuing Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient Lender or Issuing Lender from the Payor Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party Issuing Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient Lender or Issuing Lender to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
effect and (ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Lender or Issuing Lender shall not assert any right or claim to an the 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 Payor Agent for the return of any Erroneous Payment Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers . A notice of the Agent to any Lender or any Issuing Lender under this Section 12.08 clause (a) shall survive the resignation or replacement of the Payorbe conclusive, 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) under any Facility Documentabsent manifest error.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.and
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
: (i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.deemed
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.. ARTICLE XIII RESERVED ARTICLE XIV
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyIssuing Bank, or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of (x) the Federal Funds Rate in the case of Advances denominated in US Dollars or (ii) the cost of funds incurred by the Administrative Agent in respect of such amount in the case of Advances denominated in Foreign Currencies and (y) a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender and Issuing Bank, and any Person who has received funds on behalf of such Lender or Issuing Bank, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Issuing Bank, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Issuing Bank shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b7.12(b).
(c) Each Lender or Secured Party and Issuing Bank hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Bank under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Issuing Bank from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender or Issuing Lender at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Advances (but not its Commitments) of the relevant Facility with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted ClassFacility”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted ClassFacility, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the BorrowerBorrowers) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to the Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or Issuing Bank shall deliver any Notes evidencing such Advances to the applicable Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or Issuing Bank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning Issuing Bank shall cease to be a Lender or Issuing Bank, as applicable, 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 LenderLender or assigning Issuing Bank and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any Advances 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 or Issuing Bank shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or Issuing Bank (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 or Issuing Bank 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 Administrative Agent has sold an Advance (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Issuing Bank under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the any Borrower, 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 the Payor Administrative Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 7.12 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations obligations of the Borrowers (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Marsh & McLennan Companies, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 8.19 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender agrees that if it it, or any Person who has received funds on behalf of a Lender, receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(bclause (b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (or from and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Erroneous Payment (or portion thereofLender, as the case may be) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon under the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) Loan Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 8.19 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from Administrative Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Borrower for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) . Each party’s obligations, agreements and waivers under this Section 12.08 8.19 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a LenderAdministrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Bunge Global SA)
Recovery of Erroneous Payments. (a) If Each Lender and each Issuing Lender hereby agrees that (i) if the Collateral Agent or the Administrative Agent (a “Payor”) notifies a such Lender or Secured Party, or any Person who has received funds on behalf of a Issuing Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient Lender or Issuing Lender from the Payor Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender or Issuing Lender (whether or not known to such Lender or Issuing Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party Issuing Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient Lender or Issuing Lender to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effecteffect and (ii) to the extent permitted by applicable law, such Lender or 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 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 the Payor Agent to any Payment Recipient Lender or any Issuing Lender under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender and each Issuing Lender hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) an Erroneous Payment from the Payor 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, prepayment or repayment payment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Erroneous Payment (a an “Erroneous Payment Notice”), (y) that was not preceded or accompanied by a an Erroneous Payment Notice, or (z) that such Payment Recipient Lender or Issuing Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or , an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which knowledge of such error at the time of receipt of such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participantsPayment) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, except, in each case, to the extent such Erroneous Payment isPayment, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Lender or Issuing Lender shall not assert any right or claim to an the 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 Payor Agent for the return of any Erroneous Payment 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, it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify the Agent of such occurrence and, upon demand from the Agent, it shall promptly, but in all events no later than two Business Days thereafter, return to 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 or Issuing Lender to the date such amount is repaid to the Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(gc) 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 or Issuing Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights of such Lender or 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 Borrower or any other Loan Party.
(d) Each party’s obligations, agreements and waivers obligations under this Section 12.08 §14.19 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a LenderAgent, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or Each Lender hereby agrees that (i) if the Administrative Agent (a “Payor”) notifies a such Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient Lender from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an 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 Erroneous Payment Lender shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one (1) Business Day thereafter, return to the Payor 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 Payment Recipient Lender to the date such amount is repaid to the Payor in same day funds Administrative Agent at the greater of the Federal Funds NYFRB Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Lender shall assert any right or claim to an Erroneous Paymentnot assert, and hereby waives, and is deemed as to waivethe Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Payor Administrative Agent for the return of any Erroneous Payment 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 11.16 shall be conclusive, absent manifest error.
(gb) Each Lender 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 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 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 notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrower hereby agrees that (i) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (ii) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower 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 the Administrative Agent from the Borrower for the purpose of making a payment on the Obligations.
(d) Each party’s obligations, agreements and waivers obligations under this Section 12.08 11.16 shall survive the resignation or replacement of the Payor, Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Credit Document.
Appears in 1 contract
Sources: Revolving Credit Agreement (Southwest Gas Holdings, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Term Credit and Security Agreement (Monroe Capital Income Plus Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds Same Day Funds (in the currency so received), 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds Same Day Funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, L/C Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.16(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.16 shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.16(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (or from and, in the case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party, to the rights and interests of such Erroneous Payment (Lender, L/C Issuer or portion thereofSecured Party, as the case may be) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon under the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) Loan Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerParent Borrower or any other Loan Party; provided that this Section 9.16 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Parent 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from Administrative Agent from, or on behalf of (including through the exercise of remedies under any Loan Document), the Parent Borrower for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) . Each party’s obligations, agreements and waivers under this Section 12.08 9.16 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time Five-Year Credit Agreement 57 to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived Five-Year Credit Agreement 58 by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 2.21 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ obligations under this Agreement in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerCompany or any other Borrower under this Agreement; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe obligations of any Borrower relative to the Five-Year Credit Agreement 59 amount (and/or timing for payment) of such obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) of the Borrowers under any Facility Documentthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 8.12 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafter, return to the Payor the amount of any such Erroneous Payment Days thereafter (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 later date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.117 [[8006820]]
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, or any Person who has received funds on behalf of a Lender, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part, then) in each such case:: (i)
(iA) an error may have been made (it acknowledges and agrees that in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documenthereunder, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor thereof in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.118 [[8006820]]
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Advances that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 8.12 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.. 119 [[8006820]]
(g) Each party’s obligations, agreements and waivers under this Section 12.08 8.12 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Loan Document. ARTICLE IX MISCELLANEOUS Section 9.01.
Appears in 1 contract
Sources: Eighth Amendment to Existing Credit Agreement (Science Applications International Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person (other than Holdings or any of its Subsidiaries) who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.19 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Letter of Credit Issuer, Secured Party or any Person (other than Holdings or any of its Subsidiaries) who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Letter of Credit Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b12.19(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.19(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.19(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby (i) authorizes and agrees solely with the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts (“Unpaid Obligations”), against any amount due that the Administrative Agent has demanded to be returned under immediately preceding clause (a), (ii) authorizes the Administrative Agent to withhold (and hereby assigns to the Payor under Administrative Agent for the benefit of the Lenders, Letter of Credit Issuers and Secured Parties that are not Payment Recipients in respect of Erroneous Payments or have not failed to comply with Section 12.08(a12.19(a) (the “Underpaid Lender Parties”)) any amounts received by it in respect of such Unpaid Obligations from such Lender, Letter of Credit Issuer or under Secured Party and (iii) authorizes the indemnification provisions Administrative Agent to distribute amounts received in respect of this Agreementsuch Unpaid Obligations to Underpaid Lender Parties, in each case, for so long as and until the Underpaid Lender Parties and the Payment Recipient have been restored to the respective pro rata positions they would have held if such Erroneous Payment had not been made or had been immediately returned (consistent with Section 13.8).
(d) (i) In the event that an Erroneous Payment (or portion thereof) that was not made with funds provided by the Borrower (and the Borrower has not in fact made such payment, prepayment or repayment) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clauses (a), (b), or (c) from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the Administrative Agent and such Lender), but in all respects only if consented to by the Borrower to the extent required under Section 13.6, (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee and such Lender shall be deemed deliver any Notes evidencing such Loans to acquire the Erroneous Payment Deficiency Assignment and Borrower or the Administrative Agent (iiibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (C) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (D) the Administrative Agent (but not, for the avoidance of doubt, the Borrower) shall be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 10.13 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:: 770954218
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b10.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 10.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Assumption with respect to such Erroneous Payment Deficiency Assignment, (iiB) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this 770954218 Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 11.06, the Administrative 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 Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender to the rights and interests of such Lender) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 10.13 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) . Each party’s obligations, agreements and waivers under this Section 12.08 10.13 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the 770954218 replacement of, a Lender, Lender the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Pra Group Inc)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person (other than the Borrower or any of its Subsidiaries) who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.19 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.-225- #95203802v2296160609v3 #96160609v5
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Letter of Credit Issuer, Secured Party or any Person (other than the Borrower or any of its Subsidiaries) who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
: (i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient Lender, Letter of Credit Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b12.19(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.19(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.19(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby (i) authorizes and agrees solely with the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts (“Unpaid Obligations”), against any amount due to that the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that Administrative Agent has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee demanded to be waived by the Payor in such instancereturned under immediately preceding clause (a), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) authorizes the Payor as Administrative Agent to withhold (and hereby assigns to the assignee Administrative Agent for the benefit of the Lenders, Letter of Credit Issuers and Secured Parties that are not Payment Recipients in respect of Erroneous Payments or have not failed to comply with Section 12.19(a) (the “Underpaid Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment Parties”)) any amounts received by it in respect of such Unpaid Obligations from such Lender, Letter of Credit Issuer or Secured Party and (iii) upon authorizes the Administrative Agent to distribute amounts received in respect of such deemed acquisition, the Payor as the assignee Unpaid Obligations to Underpaid 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, exceptParties, in each case, for so long as and until the Underpaid Lender Parties and the Payment Recipient have been restored to the extent respective pro rata positions they would have held if such Erroneous Payment is, and solely had not been made or had been immediately returned (consistent with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from the Borrower for the purpose of making such Erroneous PaymentSection 13.8).
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.09(b) and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.09(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.09(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.09(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.with
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 (except to the extent waived in writing by the Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect]. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) 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 may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform an electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Borrower or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 8.07 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrower’s obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the Borrower; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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 Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) under any Facility Documentof the Borrower hereunder.
Appears in 1 contract
Sources: Credit Agreement (Autodesk, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party Bank (any such Lender, Secured Party or other recipientBank, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
71 (i) an error may have been made (in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.12(b).
(c) Each Lender or Secured Party Payment Recipient hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Payment Recipient under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Payment Recipient from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) . In addition, each party hereto agrees that, irrespective of whether the event an Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Payment Recipient under the Loan Documents with respect to each Erroneous Payment (or portion thereof) thereof that is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal returned to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instanceAdministrative Agent as provided herein), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(ed) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations amounts owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Paymentor any other Credit Party under any Loan Document.
(fe) 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 Payor Administrative 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.
(gf) Each party’s obligations, agreements and waivers under this Section 12.08 9.12 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderBank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations amounts owing (or any portion thereof) under any Facility Loan Document. ARTICLE X MISCELLANEOUS SECTION 10.1.
Appears in 1 contract
Sources: Term Loan Agreement (Centerpoint Energy Resources Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 10.13 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of 960766985.12 121 its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyL/C Issuer, or any Person who has received funds on behalf of a Lender or Secured Party (any L/C Issuer o(any such Lender, Secured Party L/C Issuer or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party L/C Issuer or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party L/C Issuer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer or any Person who has received funds on behalf of a Lender or L/C Issuer (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or L/C Issuer, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or L/C Issuer shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party L/C Issuer hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party L/C Issuer under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from L/C Issuer under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that Administrative Agent has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee demanded to be waived by the Payor in such instancereturned under immediately preceding clause (a), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Fifth Amendment to Amended and Restated Credit Agreement (e.l.f. Beauty, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.whether
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
: (i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient Lender shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this (b) shall not have any effect on a Payment Recipient’s obligations pursuant to (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due to that the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that Administrative Agent has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee demanded to be waived by the Payor in such instancereturned under immediately preceding clause (a), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: First Amendment to Second Amended and Restated Credit Agreement (Louisiana-Pacific Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 2.20 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ obligations under this Agreement in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerCompany or any other Borrower under this Agreement; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe obligations of any Borrower relative to the amount (and/or timing for payment) of such obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) of the Borrowers under any Facility Documentthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.09(b) and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.. AMERICAS/2023410772.1 2023410772.9 183 Credit Agreement
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, L/C Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, L/C Issuer or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.09(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.09(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.09(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances 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 (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, or AMERICAS/2023410772.1 2023410772.9 184 Credit Agreement
(ii) the Payor as the assignee Lender shall be deemed The Administrative Agent may, in its discretion, sell any Loans acquired pursuant to acquire the an Erroneous Payment Deficiency Assignment and (iii) upon receipt of the proceeds of such deemed acquisitionsale, the Payor as Erroneous Payment Return Deficiency owing by the assignee applicable Lender shall become a be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender hereunder (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the assigning sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender shall cease from time 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. 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 Agreementtime.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, L/C Issuer or Secured Party, to the rights and interests of such Lender, L/C Issuer or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 9.09(e) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each case, to the extent such Erroneous Payment is, and solely with respect Obligations of the Borrower relative to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.and/or
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyL/C Issuer, or any Person who has received funds on behalf of a Lender or Secured Party (any L/C Issuer o(any such Lender, Secured Party L/C Issuer or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party L/C Issuer or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.16 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party L/C Issuer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer or any Person who has received funds on behalf of a Lender or L/C Issuer (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or L/C Issuer, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or L/C Issuer shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this clause (b) shall not have any effect on a Payment Recipient’s obligations pursuant to clause (a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party L/C Issuer hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party L/C Issuer under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from L/C Issuer under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (or from and, in the case of any Payment Recipient who has received funds on behalf of a Lender or L/C Issuer, to the rights and interests of such Erroneous Payment (Lender, L/C Issuer or portion thereofSecured Party, as the case may be) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon under the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) Loan Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iiiy) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 9.16 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrowers 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from Administrative Agent from, or on behalf of (including through the Borrower exercise of remedies under any Loan Document), the Borrowers for the purpose of making such Erroneous Paymenta payment on the Obligations.
(fe) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(gf) Each party’s obligations, agreements and waivers under this Section 12.08 9.16 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or L/C Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
(g) Notwithstanding anything to the contrary 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 9.16 in respect of any Erroneous Payment; provided, that, the foregoing shall not limit the terms of Section 10.04 (but for the avoidance of doubt, it is understood and agreed that, if a Loan Party has paid principal, interest or any other amounts owed to a Lender Party, Section 10.04 shall not require any such Loan Party to pay additional amounts that are by way of Section 10.04, effectively duplicative of such previously paid amounts.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, Documentary Credit Lender, or any Person who has received funds on behalf of a Lender or Secured Party Documentary Credit Lender (any such Lender, Secured Party Documentary Credit Lender, or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Documentary Credit Lender, or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 17.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party Documentary Credit Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 (except to the extent waived in writing by the Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Prime Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Documentary Credit Lender, or any Person who has received funds on behalf of a Lender or Documentary Credit Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its LEGAL_1:81779606.19 BMO – BNS - Berkshire –Credit Agreement Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Documentary Credit Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Documentary Credit Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b17.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 17.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 17.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party Documentary Credit Lender hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Documentary Credit Lender under any Facility Loan Document, or otherwise payable or distributable by the Payor Agent to such Lender or Secured Party from Documentary Credit Lender under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) Commitments 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 may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) 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 (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous LEGAL_1:81779606.19 BMO – BNS - Berkshire –Credit Agreement Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 20.1 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the 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 shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Documentary Credit Lender to the rights and interests of such Lender or Documentary Credit Lender as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrower’s obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Loans that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerBorrower under the Loan Documents; provided that this Section 17.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrower relative to the amount (or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds LEGAL_1:81779606.19 BMO – BNS - Berkshire –Credit Agreement received by the Payor Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 17.11 shall survive the resignation or replacement of the PayorAgent, any transfer of rights or obligations by, or the replacement of, a Lender or Documentary Credit Lender, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person (other than Holdings or any of its Subsidiaries) who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.19 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Letter of Credit Issuer, Secured Party or any Person (other than Holdings or any of its Subsidiaries) who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Letter of Credit Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b12.19(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.19(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.19(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby (i) authorizes and agrees solely with the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts (“Unpaid Obligations”), against any amount due that the Administrative Agent has demanded to be returned under immediately preceding clause (a), (ii) authorizes the Administrative Agent to withhold (and hereby assigns to the Payor under Administrative Agent for the benefit of the Lenders, Letter of Credit Issuers and Secured Parties that are not Payment Recipients in respect of Erroneous Payments or have not failed to comply with Section 12.08(a12.19(a) (the “Underpaid Lender Parties”)) any amounts received by it in respect of such Unpaid Obligations from such Lender, Letter of Credit Issuer or under Secured Party and (iii) authorizes the indemnification provisions Administrative Agent to distribute amounts received in respect of this Agreementsuch Unpaid Obligations to Underpaid Lender Parties, in each case, for so long as and until the Underpaid Lender Parties and the Payment Recipient have been restored to the respective pro rata positions they would have held if such Erroneous Payment had not been made or had been immediately returned (consistent with Section 13.8).
(d) (i)(vi) In the event that an Erroneous Payment (or portion thereof) that was not made with funds provided by the Borrower (and the Borrower has not in fact made such payment, prepayment or repayment) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clauses (a), (b), or (c) from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the Administrative Agent and such Lender), but in all respects only if consented to by the Borrower to the extent required under Section 13.6, (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance AssumptionAcceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance AssumptionAcceptance by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee and such Lender shall be deemed deliver any Notes evidencing such Loans to acquire the Erroneous Payment Deficiency Assignment and Borrower or the Administrative Agent (iiibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (C) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (D) the Administrative Agent (but not, for the avoidance of doubt, the Borrower) shall be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(i) Subject to Section 13.6 (but excluding, in all events, any assignment consent or approval requirements (other than from the Borrower)), the Administrative 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 Administrative Agent shall retain all other rights, remedies and claims against such L▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto Administrative Agent, the Lenders and the other Secured Parties agree that irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by be subrogated to all the Borrower, exceptrights and interests of such Payment Recipient (and, in each casethe case of any Payment Recipient who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party, to the rights and interests of such Lender, Letter of Credit Issuer or Secured Party, as the case may be) under the Credit Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”); provided that, for the avoidance of doubt, this Section 12.19 shall not, and shall not be interpreted to, affect (including to duplicate, increase (or accelerate the due date for), or have the effect of duplicating, increasing (or accelerating the due date for)) the Obligations of the Borrower or any other Credit Party; provided, further, that for the avoidance of doubt, this clause (e) 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 the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense in each case, based on “discharge for value” or any similar doctrine.
(g) Each party’s The obligations, agreements and waivers of the Administrative Agent, the Lenders and the other Secured Parties under this Section 12.08 12.19 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Letter of Credit Issuer, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Credit Document.
(h) Notwithstanding anything to the contrary herein or in any other Credit Document, (x) none of Holdings or any of its Subsidiaries has acquired or incurred (or will acquire or incur) any obligations or rights under this Section 12.19, (y) the rights and obligations of Holdings and its Subsidiaries shall not be affected by this Section 12.19 and (z) this Section 12.19 shall solely be an agreement between the Administrative Agent, the Lenders and the other Secured Parties, and not Holdings, the Borrower or any other Subsidiary of Holdings.
Appears in 1 contract
Sources: Amendment Agreement No. 2, Consent and Waiver (MultiPlan Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, or Secured Partyany Person who has received funds on behalf 153
(b) Without limiting immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part, then) in each such case:: (i)
(iA) an error may have been made (it acknowledges and agrees that in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and), in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).154
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documenthereunder, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor thereof in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform as to which the Payor and such parties are participantsPlatform) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee and such Lender shall be deemed deliver any Notes evidencing such Advances to acquire the Erroneous Payment Deficiency Assignment and Borrower or the Administrative Agent (iii) upon such deemed acquisition, the Payor 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. 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.but 155
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Advances that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 8.12 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each case, to the extent such Erroneous Payment is, and solely with respect Obligations of the Borrower relative to the amount of such Erroneous Payment that is, comprised of funds received by the Payor from the Borrower (and/or timing for the purpose of making such Erroneous Payment.payment) 156
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 8.12 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Loan Document. ARTICLE IX MISCELLANEOUS Section 9.01.
Appears in 1 contract
Sources: Credit Agreement (Science Applications International Corp)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyLender, Issuing Bank or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank or other such recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made on or prior to ten (10) Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient Lender or Issuing Bank, or any Person who has received funds on behalf of a Lender or Issuing Bank, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Issuing Bank, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (A) in the case of immediately preceding clauses subclauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause subclause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Issuing Bank shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b11.14(b).
(c) Each Lender or Secured Party Issuing Bank hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Bank under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Issuing Bank from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a11.14(a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a11.14(a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon each party hereto agrees that, irrespective of whether the Payor’s request to such Lender at any timeAdministrative Agent may be equitably subrogated, (i) such Lender the Administrative Agent shall be deemed contractually subrogated to have assigned its Advances (but not its Commitments) all the rights and interests of the applicable Lender or Issuing Bank under the Loan Documents with respect to which such each Erroneous Payment was made Return Deficiency (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor Administrative Agent from the Borrower (or on behalf of the Borrower) for the purpose of making such Erroneous Paymentpaying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and each Payment Recipient 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 Payor Administrative 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, agreements and waivers under this Section 12.08 11.14 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
(h) For the avoidance of doubt, and notwithstanding anything in this Section 11.14 to the contrary, the existence of an Erroneous Payment as between the Administrative Agent and any Payment Recipient shall not affect the termination of this Agreement or the Commitments and/or the repayment, satisfaction or discharge of Obligations under any Loan Document to the extent that the Borrower (or another Person on behalf of the Borrower) has actually paid such amounts to such accounts and at such times, in each case as specified in a payoff letter executed by the Administrative Agent and the Borrower.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender, Issuing Lender, Swingline Lender or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Lender, Swingline Lender or Secured Party (any such Lender, Issuing Lender, Swingline Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Lender, Swingline Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Lender, Swingline Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or Each Lender hereby agrees that (x) if the Administrative Agent (a “Payor”) notifies a such Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient Lender from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an 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 Erroneous Payment Lender shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient Lender to the date such amount is repaid to the Payor in same day funds Administrative Agent at the greater of the Federal Funds NYFRB Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), and (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Lender shall assert any right or claim to an Erroneous Paymentnot assert, and hereby waives, and is deemed as to waivethe Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Payor Administrative Agent for the return of any Erroneous Payment 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 9.12 shall be conclusive, absent manifest error.
(gb) Each Lender hereby further agrees that if it receives a Payment from 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 the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) 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 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 notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by 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) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the 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.
(d) Each party’s obligations, agreements and waivers obligations under this Section 12.08 9.12 shall survive the resignation or replacement of the Payor, Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Highwoods Realty LTD Partnership)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by 50 the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(ii) Subject to Section 2.20 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Agent may, in its discretion, sell any Advances 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 Advance (or portion thereof), and the Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Agent) and (y) may, in the sole discretion of the Agent, be reduced by any amount specified by the Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such) under this Agreement with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Borrowers’ obligations under this Agreement in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such obligations in respect of Advances that have been assigned to the Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations obligations owed by the BorrowerCompany or any other Borrower under this Agreement; provided that this Section 7.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe obligations of any Borrower relative to the amount (and/or timing for payment) of such obligations that would have been payable had such Erroneous Payment not been made by the Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Agent from the any Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 7.11 shall survive the resignation or replacement of the PayorAgent, 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 obligations (or any portion thereof) of the Borrowers under any Facility Documentthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Boeing Co)
Recovery of Erroneous Payments. Notwithstanding anything to the contrary in this Agreement, if at any time Agent determines (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor has determined in its sole discretion (and absolute discretion) that it has made a payment hereunder in error to any Lender, L/C Issuer or other Lender Party, whether or not after receipt 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 notice under Section 12.08(b)) that any funds such event, each such Person receiving a Rescindable Amount severally agrees to repay to Agent forthwith on demand the Rescindable Amount received by such Payment Recipient from the Payor or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such Person in immediately available funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 thereon, for each day from and including the date such Erroneous Payment (or portion thereof) was Rescindable Amount is received by such Payment Recipient it to but excluding the date such amount is repaid of payment to the Payor in same day funds Agent, at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time compensation. Each Lender, each L/C Issuer and each other Lender Party 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. A notice respect of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aa debt owed by another), each Payment Recipient hereby further agrees that if it receives a payment“good consideration”, prepayment “change of position” or repayment similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. Agent shall inform each Lender, L/C Issuer or other Lender Party that received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (or Rescindable Amount promptly upon determining that 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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect payment made to such paymentPerson comprised, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) a Rescindable Amount. Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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 partyPerson’s obligations, agreements and waivers under this Section 12.08 8.2(p) shall survive the resignation or replacement of the PayorAgent, 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) under any Facility Document.88 [[7932149]]
Appears in 1 contract
Sources: Credit Agreement (White Mountains Insurance Group LTD)
Recovery of Erroneous Payments. (ajj) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, but in any event excluding the Borrower and its Affiliates, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(ba) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(iiB) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b).
(cb) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(dc) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any promissory notes evidencing such Advances to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor Administrative 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. 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.
(ed) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(fe) To the extent permitted by applicable lawApplicable 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 Payor Administrative 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.
(gf) Each party’s obligations, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the PayorAdministrative 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) under the Facility Documents.
(g) Notwithstanding anything to the contrary herein or in any other Facility Document, none of the Borrower or any of its Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 12.08 in respect of any Erroneous Payment (provided that the foregoing shall in no way limit the obligation of the Borrower to repay the Obligations in accordance with the terms of this Agreement).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, Purchaser or any Person who has received funds on behalf of a Lender or Secured Party Purchaser (any such Lender, Secured Party or other recipientPerson, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Purchaser or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof) in writing (provided that, without limiting any other rights or remedies (whether at law or in equity), the Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within 30 days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Purchaser shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two (2) Business Day Days thereafter, return to the Payor Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient Purchaser, or any Person who has received funds on behalf of a Purchaser, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Purchaser, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Purchaser shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.11(b).
(c) Each Lender or Secured Party Purchaser hereby authorizes the Payor Administrative Agent to set set-off, net and apply any and all amounts at any time owing to such Lender or Secured Party Purchaser under any Facility Transaction Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Purchaser from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a9.11(a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a9.11(a), from any Lender Purchaser that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) behalf (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender Purchaser at any time, (i) such Lender Purchaser shall be deemed to have assigned its Advances interests in the Receivable Interests (but not its CommitmentsCommitment) 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 Administrative Agent may specify) (such assignment of interests in the Advances Receivable Interests (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the BorrowerSeller) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) Agreement with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor Administrative Agent as the assignee Lender Purchaser shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender Purchaser shall become a Lender Purchaser hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender Purchaser shall cease to be a Lender Purchaser 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 Commitment which shall survive as to such assigning LenderPurchaser and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Receivable Interests subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion, sell any interest in the Receivable Interests acquired pursuant to an Erroneous Payment Deficiency Assignment to an Eligible Assignee subject to the terms and conditions with respect to assignment of interests in the Receivable Interests set forth herein and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Purchaser shall be reduced by the net proceeds of the sale of such interest in the Receivable Interests (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Purchaser (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 Commitment of any Lender Purchaser and such Commitments Commitment shall remain available in accordance with the terms of this Agreement.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations Aggregate Unpaids owed by the BorrowerSeller or any other Seller 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 the Payor Administrative Agent from the Borrower Seller or any other Seller Party for the purpose of making such Erroneous Paymentreducing the Aggregate Unpaids.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 9.11 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderPurchaser, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations Aggregate Unpaids (or any portion thereof) under any Facility Transaction Document.
(h) Nothing referenced in this Section 9.11, including the payment of an Erroneous Payment and the rights and obligations of the parties related thereto under this Section 9.11, shall trigger the Seller Parties’ indemnification obligations hereunder including under Article VIII.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyLender, issuer of the Letters of Credit or any Person who has received funds on behalf of a Lender or Secured Party issuer of the Letters of Credit (any such Lender, Secured Party issuer of the Letters of Credit or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party issuer of the Letters of Credit or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party issuer of the Letters of Credit shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, issuer of the Letters of Credit, or any Person who has received funds on behalf of a Lender or issuer of the Letters of Credit such Lender or issuer of Letters of Credit, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, issuer of the Letters of Credit, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; andand 4889-7534-3155, v. 14
(ii) such Payment Recipient Lender or issuer of the Letters of Credit shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one two Business Day Days of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b11.12.(b).
(c) Each Lender or Secured Party issuer of the Letters of Credit hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party issuer of the Letters of Credit under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party issuer of the Letters of Credit from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender or issuer of the Letters of Credit that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender or issuer of the Letters of Credit at any time, (i) such Lender or issuer of the Letters of Credit shall be deemed to have assigned its Advances 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or issuer of the Letters of Credit shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or issuer of the Letters of Credit, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning issuer of the Letters of Credit shall cease to be a Lender or issuer of the Letters of Credit, as applicable, 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 LenderLender or assigning issuer of the Letters of Credit and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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 or issuer of the Letters of Credit shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or issuer of the Letters of Credit (and/or against any recipient that receives funds on 4889-7534-3155, v. 14 its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender or issuer of the Letters of Credit 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or issuer of the Letters of Credit under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower or any other Loan Party, exceptand notwithstanding any other provision of this Agreement or the other Loan Documents, all amounts representing an Erroneous Payment shall constitute Obligations for all purposes of this Agreement and the other Loan Documents irrespective of the making of such Erroneous Payment EXCEPT, in each case, to the extent such Erroneous Payment is, is (and solely with respect to the amount of such Erroneous Payment that is, ) comprised of funds received by the Payor Administrative Agent from the Borrower or any other Loan Party (the “Borrower Payment Amounts”) for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 11.12. shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or issuer of the Letters of Credit, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Corporate Office Properties Trust)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other such recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made on or prior to ten (10) Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient Lender, or any Person who has received funds on behalf of a Lender, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (A) in the case of immediately preceding clauses subclauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause subclause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b11.15(b).
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a11.15(a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a11.15(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon each party hereto agrees that, irrespective of whether the Payor’s request to such Lender at any timeAdministrative Agent may be equitably subrogated, (i) such Lender the Administrative Agent shall be deemed contractually subrogated to have assigned its Advances (but not its Commitments) all the rights and interests of the applicable Lender under the Loan Documents with respect to which such each Erroneous Payment was made Return Deficiency (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor Administrative Agent from the Borrower (or on behalf of the Borrower) for the purpose of making such Erroneous Paymentpaying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and each Payment Recipient 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 Payor Administrative 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, agreements and waivers under this Section 12.08 11.15 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Loan Document.
(h) For the avoidance of doubt, and notwithstanding anything in this Section 11.15 to the contrary, the existence of an Erroneous Payment as between the Administrative Agent and any Payment Recipient shall not affect the termination of this Agreement or the Commitments and/or the repayment, satisfaction or discharge of Obligations under any Loan Document to the extent that the Borrower (or another Person on behalf of the Borrower) has actually paid such amounts to such accounts and at such times, in each case as specified in a payoff letter executed by the Administrative Agent and the Borrower.
Appears in 1 contract
Sources: 364 Day Bridge Term Loan Agreement (Sitio Royalties Corp.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, Letter of Credit Issuer or Secured Party, or any Person (other than the Borrower or any of its Subsidiaries) who has received funds on behalf of a Lender Lender, Letter of Credit Issuer or Secured Party (any such Lender, Letter of Credit Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Letter of Credit Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made within five Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 12.19 and held in trust for the benefit of the Administrative Agent, and such Lender Lender, Letter of Credit Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effectOvernight Rate. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Letter of Credit Issuer, Secured Party or any Person (other than the Borrower or any of its Subsidiaries) who has received funds on behalf of a Lender, Letter of Credit Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not -192- preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, Letter of Credit Issuer or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender, Letter of Credit Issuer or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b12.19(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.19(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.19(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, Letter of Credit Issuer or Secured Party hereby (i) authorizes and agrees solely with the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, Letter of Credit Issuer or Secured Party under any Facility Credit Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, Letter of Credit Issuer or Secured Party from under any sourceCredit Document with respect to any payment of principal, interest, fees or other amounts (“Unpaid Obligations”), against any amount due that the Administrative Agent has demanded to be returned under immediately preceding clause (a), (ii) authorizes the Administrative Agent to withhold (and hereby assigns to the Payor under Administrative Agent for the benefit of the Lenders, Letter of Credit Issuers and Secured Parties that are not Payment Recipients in respect of Erroneous Payments or have not failed to comply with Section 12.08(a12.19(a) (the “Underpaid Lender Parties”)) any amounts received by it in respect of such Unpaid Obligations from such Lender, Letter of Credit Issuer or under Secured Party and (iii) authorizes the indemnification provisions Administrative Agent to distribute amounts received in respect of this Agreementsuch Unpaid Obligations to Underpaid Lender Parties, in each case, for so long as and until the Underpaid Lender Parties and the Payment Recipient have been restored to the respective pro rata positions they would have held if such Erroneous Payment had not been made or had been immediately returned (consistent with Section 13.8).
(d) (i) In the event that an Erroneous Payment (or portion thereof) that was not made with funds provided by the Borrower (and the Borrower has not in fact made such payment, prepayment or repayment) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clauses (a), (b), or (c) from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the Administrative Agent and such Lender), but in all respects only if consented to by the Borrower to the extent required under Section 13.6, (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee and such Lender shall be deemed deliver any Notes evidencing such Loans to acquire the Erroneous Payment Deficiency Assignment and Borrower or the Administrative Agent (iiibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (C) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (D) the Administrative Agent (but not, for the avoidance of doubt, the Borrower) shall be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.10 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
: (i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient Lender or Secured Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one three (3) Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.10(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.10(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.10(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its Commitments) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to the Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or Each Lender hereby agrees that (x) if the Administrative Agent (a “Payor”) notifies a such Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient Lender from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an 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 Erroneous Payment Lender shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient Lender to the date such amount is repaid to the Payor in same day funds Administrative Agent at the greater of the Federal Funds NYFRB Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), and (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Lender shall assert any right or claim to an Erroneous Paymentnot assert, and hereby waives, and is deemed as to waivethe Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Payor Administrative Agent for the return of any Erroneous Payment 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 9.15(a) shall be conclusive, absent manifest error.
(gb) Each Lender hereby further agrees that if it receives a Payment from 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 the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) 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 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 notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) Each Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the 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 any Borrower or any other Loan Party.
(d) Each party’s obligations, agreements and waivers obligations under this Section 12.08 9.14 shall survive the resignation or replacement of the Payor, Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
(e) Nothing in this Section 9.15 shall 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 Borrowers 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, Sections 9.15(c) and (d) shall not apply to the extent any portion thereof) under any Facility Documentsuch Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrowers for the purpose of making such Erroneous Payment.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, L/C Issuer or other Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or other Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)clause (b) of this Section) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution [DocGo] Amended and Restated Credit Agreement or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender Party shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this clause (b) of Section 12.08(b)9.13.
(c) Each Lender Lender, L/C Issuer or other Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or other Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or other Secured Party from any source, against any amount due to the Payor Administrative Agent under clause (a) of Section 12.08(a) 9.13 or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Credit Agreement (DocGo Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.16(a) and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same |US-DOCS\161843207.11|| day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Secured Party shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.16(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.16(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.16(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request |US-DOCS\161843207.11||
(ii) Subject to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances Section 10.07 (but not excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative Agent may, in its Commitments) with respect discretion, sell any Loans acquired pursuant to which such an Erroneous Payment was made (Deficiency Assignment and upon receipt of the “Erroneous Payment Impacted Class”) in an amount equal to proceeds of such sale, the Erroneous Payment Return Deficiency (such assignment owing by the applicable Lender shall be reduced by the net proceeds of the Advances sale of such Loan (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instanceor portion thereof), and is hereby the Administrative Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicableand/or against any recipient that receives funds on its respective behalf). In addition, an agreement incorporating an Assignment Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and Acceptance interest, or other distribution in respect of principal and interest, received by reference pursuant to Platform as to which the Payor and such parties are participants) Administrative Agent on or with respect to any such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Loans acquired from such Lender shall be deemed pursuant to acquire the an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (iiiy) upon such deemed acquisitionmay, in the Payor as sole discretion of the assignee Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender shall become a Lender hereunder with respect from time 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. 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 Agreementtime.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the |US-DOCS\161843207.11|| Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 9.16(e) shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 9.16 shall survive the resignation or replacement of the PayorAdministrative 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) under any Facility Loan Document.
Appears in 1 contract
Sources: Credit Agreement (Eventbrite, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyLender, Issuing Bank or any Person who has received funds on behalf of a Lender or Secured Party Issuing Bank (any such Lender, Secured Party Issuing Bank or other such recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Issuing Bank or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands 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 Administrative Agent may not make any such demand under this clause (a) with respect to an Erroneous Payment unless such demand is made on or prior to ten (10) Business Days of the date of receipt of such Erroneous Payment by the applicable Payment Recipient), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party Issuing Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient Lender or Issuing Bank, or any Person who has received funds on behalf of a Lender or Issuing Bank, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Issuing Bank, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (A) in the case of immediately preceding clauses subclauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause subclause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Issuing Bank shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b11.15(b).
(c) Each Lender or Secured Party Issuing Bank hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party Issuing Bank under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party Issuing Bank from any source, against any amount due to the Payor Administrative Agent under Section 12.08(a11.15(a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(a11.15(a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon each party hereto agrees that, irrespective of whether the Payor’s request to such Lender at any timeAdministrative Agent may be equitably subrogated, (i) such Lender the Administrative Agent shall be deemed contractually subrogated to have assigned its Advances (but not its Commitments) all the rights and interests of the applicable Lender or Issuing Bank under the Loan Documents with respect to which such each Erroneous Payment was made Return Deficiency (the “Erroneous Payment Impacted ClassSubrogation Rights”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor Administrative Agent from the Borrower (or on behalf of the Borrower) for the purpose of making such Erroneous Paymentpaying, prepaying, repaying, discharging or otherwise satisfying any Obligations.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and each Payment Recipient 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 Payor Administrative 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, agreements and waivers under this Section 12.08 11.15 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
(h) For the avoidance of doubt, and notwithstanding anything in this Section 11.15 to the contrary, the existence of an Erroneous Payment as between the Administrative Agent and any Payment Recipient shall not affect the termination of this Agreement or the Commitments and/or the repayment, satisfaction or discharge of Obligations under any Loan Document to the extent that the Borrower (or another Person on behalf of the Borrower) has actually paid such amounts to such accounts and at such times, in each case as specified in a payoff letter executed by the Administrative Agent and the Borrower.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender Lender, L/C Issuer or other Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or other Secured Party (any such Lender, L/C Issuer, Secured Party or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)clause (b) of this Section) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds Same Day Funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:: [OneSpan] Credit Agreement #520863281
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this clause (b) of Section 12.08(b)9.13.
(c) Each Lender Lender, L/C Issuer or other Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or other Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or other Secured Party from under any sourceLoan Document, against any amount due to the Payor Administrative Agent under clause (a) of Section 12.08(a) 9.13 or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Sources: Credit Agreement (OneSpan Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.16 and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds Same Day Funds (in the currency so received), 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds Same Day Funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Lender, L/C Issuer or Secured Party shall (and shall cause any other Payment Recipient shall to) promptly (and, in all events, within one (1) Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.16(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.16 shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.16(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender Lender, L/C Issuer or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender Lender, L/C Issuer or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender Lender, L/C Issuer or Secured Party under any Loan Document with respect to any payment of principal, interest, fees, or other amounts or from any other source, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender or L/C Issuer that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender or L/C Issuer at any time, (i) such Lender or L/C Issuer (the “Erroneous Payment Assigning Lender”) shall be deemed to have assigned its Advances Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (to the “Erroneous Payment Impacted Class”) Administrative Agent in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instanceinterest), and is hereby (together with the BorrowerBorrowers) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to Platform an electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or L/C Issuer shall deliver any Notes evidencing such Loans to the Borrowers or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or L/C Issuer, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning L/C Issuer shall cease to be a Lender or L/C Issuer, as applicable, 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 LenderLender or assigning L/C Issuer and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative Agent may, in its discretion and subject to the Borrowers’ consent rights as set forth in Section 10.07, 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 or L/C Issuer shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or L/C Issuer (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 or L/C Issuer 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender, L/C Issuer or Secured Party under the Loan Documents with respect to each Erroneous Payment Return Deficiency.
(e) The parties hereto agree In the event that a Revolving Credit Loan is assigned pursuant to clause (d) above, then (i) for purposes of determining “Required Lenders” or any other provision hereof specifying the number or percentage of Revolving Credit Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, (x) the unused Commitment of the applicable class of an Erroneous Payment Assigning Lender shall be deemed to be reduced by the Erroneous Payment Assigned Amount (as defined below) of such Erroneous Payment Assigning Lender and (y) the Erroneous Payment Assigned Amount held by the Administrative Agent shall be included as Revolving Credit Loans of the applicable class in any determination under such defined terms or provisions, (ii) the amount of the Commitment Fee payable to any Revolving Credit Lender shall not paybe increased as a result of such assignment, prepay, repay, discharge or otherwise satisfy any Obligations owed (iii) the amount available to be borrowed by the BorrowerBorrowers from the Erroneous Payment Assigning Lender in respect of the affected class of Revolving Credit Commitments shall not be increased as a result of such assignment, except, in each case, (iv) to the extent appropriate and relating to the determination of the proper recipient of any payment attributable to the applicable Erroneous Payment Assigned Amount, such Erroneous Payment is, and solely Assigned Amount shall be treated as a part of the Outstanding Amount in respect of the Revolving Credit Facility held by the Administrative Agent with respect to the amount of affected class and (v) otherwise, such Erroneous Payment that is, comprised Assigned Amount shall be treated as a part of funds received the Outstanding Amount in respect of the Revolving Credit Facility held by the Payor from the Borrower Erroneous Payment Assigning Lender, including for the purpose purposes of making such determining participations in Letters of Credit. For purposes hereof, “Erroneous Payment.
(f) To the extent permitted by applicable lawPayment Assigned Amount” shall mean, no Payment Recipient shall assert any right or claim as 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a Assigning Lender, the termination principal amount assigned in accordance with clause (d) above (taking into account any prepayment or repayment from time to time of such principal amount in accordance with the Commitments and/or the repayment, satisfaction or discharge terms of all Obligations (or any portion thereof) under any Facility Documentthis Agreement).
Appears in 1 contract
Sources: Credit Agreement (SailPoint, Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Partyan L/C Issuer, or any Person who has received funds on behalf of a Lender or Secured Party an L/C Issuer (any such Lender, Secured Party Issuing Bank or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bthe immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party such L/C Issuer or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.11 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party such L/C Issuer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 Payment Recipient to the date such amount is repaid to the Payor in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.;
(b) Without limiting Section 12.08(athe immediately preceding clause (a), each Payment Recipient hereby further Lender, each L/C Issuer or any Person who has received funds on behalf of a Lender or an L/C Issuer (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or such L/C Issuer, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:: 124 ▇▇▇▇▇ ▇▇▇▇▇▇ Credit and Guaranty Agreement AMERICAS/2022758566.11
(i) an error may have been made it acknowledges and agrees that (A) in the case of the immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of the immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or such L/C Issuer shall use commercially reasonable efforts to (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in the immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.11(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party each L/C Issuer hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party such L/C Issuer under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from such L/C Issuer under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor under Section 12.08(a) or be returned under the indemnification provisions of this Agreementimmediately preceding clause (a).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(athe immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender (an “Erroneous Payment Assigning Lender”) shall be deemed to have assigned its Advances Loans (but not its CommitmentsCommitment) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not CommitmentsCommitment) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the BorrowerBorrowers) deemed to execute and deliver an Assignment and Acceptance Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Assumption by reference pursuant to a Platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Erroneous Payment Assigning Lender shall deliver any Notes evidencing such Loans to the Borrower Agent or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender 125 ▇▇▇▇▇ ▇▇▇▇▇▇ Credit and Guaranty Agreement AMERICAS/2022758566.11 Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning such Erroneous Payment Assigning Lender shall cease to be a Lender Lender, as applicable, 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 Commitment which shall survive as to such assigning Erroneous Payment Assigning Lender, (D) the Administrative Agent and the Borrowers shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments Commitment of any Lender and such Commitments Commitment shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 11.06(b) (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrowers or otherwise)), the Administrative 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 Erroneous Payment Assigning Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Erroneous Payment Assigning Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or an L/C Issuer, to the rights and interests of such Lender or such L/C Issuer, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrowers or any other Loan Party; provided that this Section 9.11 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe Obligations of the Borrowers 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 (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the any Borrower for the purpose of making such Erroneous Payment.. 126 ▇▇▇▇▇ ▇▇▇▇▇▇ Credit and Guaranty Agreement AMERICAS/2022758566.11
(f) To In the extent permitted by applicable lawevent that a Loan is assigned pursuant to the immediately preceding clause (d), no Payment Recipient shall assert then (i) for purposes of determining “Required Lenders” or any right other provision hereof specifying the number or claim to an Erroneous Payment, and hereby waives, and is deemed percentage of Lenders required to waive, amend or modify any claimrights hereunder or make any determination or grant any consent hereunder, counterclaim(x) the unused Commitment of an Erroneous Payment Assigning Lender shall be deemed to be reduced by the Erroneous Payment Assigned Amount (as defined below) of such Erroneous Payment Assigning Lender and (y) the Erroneous Payment Assigned Amount held by the Administrative Agent shall be included as Loans in any determination under such defined terms or provisions, defense or right (ii) the amount of set-off or recoupment with respect the Commitment Fee payable to any demandLender shall not be increased as a result of such assignment, claim or counterclaim (iii) the amount available to be borrowed by the Payor Borrowers from the Erroneous Payment Assigning Lender in respect of its Commitment shall not be increased as a result of such assignment, (iv) to the extent appropriate and relating to the determination of the proper recipient of any payment attributable to the applicable Erroneous Payment Assigned Amount, such Erroneous Payment Assigned Amount shall be treated as a part of the Revolving Credit Exposure of the Administrative Agent and (v) otherwise, such Erroneous Payment Assigned Amount shall be treated as a part of the Revolving Credit Exposure of the Erroneous Payment Assigning Lender, including for the return purposes of determining participations in Letters of Credit or Swing Line Loans. For purposes hereof, “Erroneous Payment Assigned Amount” means, as to 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, any transfer of rights or obligations by, or the replacement of, a Assigning Lender, the termination principal amount assigned in accordance with the immediately preceding clause (d) (taking into account any prepayment or repayment from time to time of such principal amount in accordance with the Commitments and/or the repayment, satisfaction or discharge terms of all Obligations (or any portion thereof) under any Facility Documentthis Agreement).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Recovery of Erroneous Payments. (a) If Each Bank hereby agrees that (i) if the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, a “Payment Recipient”) Bank that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(b)) that any funds received by such Payment Recipient Bank from the Payor Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an 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 Erroneous Payment Bank shall at all times remain the property of the Payor, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient Bank to the date such amount is repaid to the Payor in same day funds Agent at the greater of the Federal Funds NYFRB Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor to any Payment Recipient under this Section 12.08(a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor (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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
and (ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient such Bank shall assert any right or claim to an Erroneous Paymentnot assert, and hereby waives, and is deemed as to waivethe Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Payor Agent for the return of any Erroneous Payment Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of the Agent to any Bank under this Section 7.10 shall be conclusive, absent manifest error.
(gb) Each Bank hereby further agrees that if it receives a Payment from the Agent or any of its Affiliates (i) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the 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 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 notify the Agent of such occurrence and, upon demand from the Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Bank to the date such amount is repaid to the Agent at the greater of the NYFRB Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Company and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Bank that has received such Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights of such 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 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 the Agent from the Company or any other Loan Party for the purpose of making such erroneous Payment.
(d) Each party’s obligations, agreements and waivers obligations under this Section 12.08 Section 7.10 shall survive the resignation or replacement of the Payor, Agent or any transfer of rights or obligations by, or the replacement of, a LenderBank, the termination of the Commitments and/or or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) obligations under any Facility Loan Document.
Appears in 1 contract
Sources: Term Credit Agreement (Ecolab Inc.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured PartyLender, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party Lender or other recipientrecipient (and each of their respective successors and assigns) , a “Payment Recipient”) that the Payor Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Agent) received by such Payment Recipient from the Payor Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party Lender or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAgent pending its return or repayment as contemplated below in this Section 7.11 and held in trust for the benefit of the Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day thereafterDays thereafter (or such later date as the Agent may, in its sole discretion, specify in writing), return to the Payor 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 Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Payor Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender or any Person who has received funds on behalf of a Lender (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Agent pursuant to this Section 12.08(b7.11(b). For the avoidance of doubt, the failure to deliver a notice to the Agent pursuant to this Section 7.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.11(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Documentthis Agreement, or otherwise payable or distributable by the Payor Agent to such Lender under this Agreement with respect to any payment of principal, interest, fees or Secured Party from any sourceother amounts, against any amount due that the Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAgent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”Commitments ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Agent may specify) (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Agent in such instance)), and is hereby (together with the BorrowerCompany) deemed to execute and deliver an Assignment and Acceptance assignment agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance assignment agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Company or the Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipient, but in any event excluding the Borrower and its Affiliates, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one Business Day thereafter, return to the Payor 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(iA) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(iiB) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class), the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any promissory notes evidencing such Advances to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor Administrative 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable lawApplicable 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 Payor Administrative 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the PayorAdministrative 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) under the Facility Documents.
(h) Notwithstanding anything to the contrary herein or in any other Facility Document, none of the Borrower or any of its Affiliates shall have any obligations or liabilities directly or indirectly arising out of this Section 12.08 in respect of any Erroneous Payment (provided that the foregoing shall in no way limit the obligation of the Borrower to repay the Obligations in accordance with the terms of this Agreement).
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Logan Ridge Finance Corp.)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”) notifies a Lender or Secured PartyLender, issuer of the Letters of Credit or any Person who has received funds on behalf of a Lender or Secured Party issuer of the Letters of Credit (any such Lender, Secured Party issuer of the Letters of Credit or other recipient, a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party issuer of the Letters of Credit or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party issuer of the Letters of Credit shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than one two Business Day Days thereafter, return to the Payor Administrative Agent the amount of any such 4930-5233-2131, v. 14930-5233-2131, v. 9 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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient Lender, issuer of the Letters of Credit, or any Person who has received funds on behalf of a Lender or issuer of the Letters of Credit such Lender or issuer of Letters of Credit, hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender, issuer of the Letters of Credit, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (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 Administrative Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or issuer of the Letters of Credit shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one two Business Day Days of its knowledge of such error) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b11.12.(b).
(c) Each Lender or Secured Party issuer of the Letters of Credit hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party issuer of the Letters of Credit under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party issuer of the Letters of Credit from any source, against any amount due to the Payor Administrative Agent under Section 12.08(aimmediately preceding clause (a) or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor Administrative Agent in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender or issuer of the Letters of Credit that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor4930-5233-2131, v. 14930-5233-2131, v. 9 Administrative Agent’s request notice to such Lender or issuer of the Letters of Credit at any time, (i) such Lender or issuer of the Letters of Credit shall be deemed to have assigned its Advances 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance Agreement (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance Agreement by reference pursuant to Platform an approved electronic platform as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender or issuer of the Letters of Credit shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent, (ii) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender or issuer of the Letters of Credit, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender or assigning issuer of the Letters of Credit shall cease to be a Lender or issuer of the Letters of Credit, as applicable, 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 LenderLender or assigning issuer of the Letters of Credit and (iv) the Administrative Agent may reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. The Administrative 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 or issuer of the Letters of Credit shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender or issuer of the Letters of Credit (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 or issuer of the Letters of Credit 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 Administrative Agent has sold a Loan (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or issuer of the Letters of Credit under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “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 BorrowerBorrower or any other Loan Party, exceptand notwithstanding any other provision of this Agreement or the other Loan Documents, all amounts representing an Erroneous Payment shall constitute Obligations for all purposes of this Agreement and the other Loan Documents irrespective of the making of such Erroneous Payment EXCEPT, in each case, to the extent such Erroneous Payment is, is (and solely with respect to the amount of such Erroneous Payment that is, ) comprised of funds received by the Payor Administrative Agent from the 4930-5233-2131, v. 14930-5233-2131, v. 9 Borrower or any other Loan Party (the “Borrower Payment Amounts”) for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative 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, agreements and waivers under this Section 12.08 11.12. shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or issuer of the Letters of Credit, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender Lender, L/C Issuer or Secured Party, or any Person who has received funds on behalf of a Lender Lender, L/C Issuer or Secured Party (any such Lender, L/C Issuer, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, L/C Issuer, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.09(b) and held in trust for the benefit of the Administrative Agent, and such Lender Lender, L/C Issuer or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, L/C Issuer, Secured Party or any Person who has received funds on behalf of a Lender, L/C Issuer or Secured Party (and each of their respective successors and assigns), agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor 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, prepayment or repayment sent by the Payor (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(i) an error may have been made (in the case of immediately preceding clauses (x) or (y)) or an error has been made (in the case of immediately preceding clause (z)) with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Payor of its receipt of such payment, prepayment or repayment, the details thereof and that it is so notifying the Payor pursuant to this Section 12.08(b).
(c) Each Lender or Secured Party hereby authorizes the Payor to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Document, or otherwise payable or distributable by the Payor to such Lender or Secured Party from any source, against any amount due to the Payor under Section 12.08(a) or under the indemnification provisions of this Agreement.
(d) In the event an Erroneous Payment (or portion thereof) is not recovered by the Payor for any reason, after demand therefor by the Payor in accordance with Section 12.08(a), from any Lender that has received such Erroneous Payment (or portion thereof) (or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Payor’s request to such Lender at any time, (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (such assignment of the Advances (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with any assignment fee to be waived by the Payor in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform as to which the Payor and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, (ii) the Payor as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the Payor 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. 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.
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower, 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 the Payor from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor 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, agreements and waivers under this Section 12.08 shall survive the resignation or replacement of the Payor, 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) under any Facility Document.this
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Recovery of Erroneous Payments. (a) If the Collateral Agent or the Administrative Agent (a “Payor”x) notifies a Lender or Secured Party, or any Person who has received funds on behalf of a Lender or Secured Party (any such Lender, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Payor Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under Section 12.08(bimmediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Payor Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Secured Party or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the PayorAdministrative Agent pending its return or repayment as contemplated below in this Section 9.13 and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) 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 the Payor 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 (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 Payment Recipient to the date such amount is repaid to the Payor Administrative Agent in same day funds at the greater of the Federal Funds Overnight Rate and a rate determined by the Payor Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Payor Administrative Agent to any Payment Recipient under this Section 12.08(aclause (a) shall be conclusive, absent manifest error.
(b) Without limiting Section 12.08(aimmediately preceding clause (a), each Payment Recipient hereby further Lender, Issuing Bank, Secured Party or any Person who has received funds on behalf of a Lender or Secured Party (and each of their respective successors and assigns) , agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Payor Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Payor Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)repayment, (y) that was not preceded or accompanied by a Payment Noticenotice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Payment Recipient Lender or Secured Party, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), then in each such case:
(i) an error may have been made it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)) ), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient Lender or Secured Party shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of such errorthe occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Payor Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Payor Administrative Agent pursuant to this Section 12.08(b9.13(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.13(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.13(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender or Secured Party hereby authorizes the Payor Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Facility Loan Document, or otherwise payable or distributable by the Payor Administrative Agent to such Lender or Secured Party from under any sourceLoan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due that the Administrative Agent has demanded to the Payor be returned under Section 12.08(a) or under the indemnification provisions of this Agreementimmediately preceding clause (a).
(d) (i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Payor Administrative Agent for any reason, after demand therefor by the Payor in accordance with Section 12.08(aimmediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (or and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the PayorAdministrative Agent’s request notice to such Lender at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender shall be deemed to have assigned its Advances Loans (but not its CommitmentsCommitments ) 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 Administrative Agent may specify) (such assignment of the Advances Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with any the assignment fee to be waived by the Payor Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Acceptance by reference pursuant to Platform an electronic communication as to which the Payor Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Loans to the Borrower or the Administrative Agent (iibut the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Payor Administrative Agent as the assignee Lender shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Payor Administrative Agent as the assignee Lender shall become a Lender Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender Lender, as applicable, 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, (D) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Loans subject to the Erroneous Payment Deficiency Assignment. 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.
(i) Subject to Section 10.06 (but excluding, in all events, any assignment consent or approval requirements (whether from the Borrower or otherwise)), the Administrative 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 Administrative Agent shall retain all other rights, remedies and claims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that the Loan Parties’ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the BorrowerBorrower or any other Loan Party; provided that this Section 9.13 shall not be interpreted to increase (or accelerate the due date for), exceptor have the effect of increasing (or accelerating the due date for), in each casethe 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, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Payor Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) 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 Payor Administrative Agent for the return of any Erroneous Payment received, including including, without limitation waiver of limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 12.08 9.13 shall survive the resignation or replacement of the PayorAdministrative Agent, any transfer of rights or obligations by, or the replacement of, a LenderLender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Facility Loan Document.
Appears in 1 contract
Sources: Exchange First Lien Loan Credit Agreement (Altisource Portfolio Solutions S.A.)