Return of Certain Payments. (a) If the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the 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 Administrative Agent, and such 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 two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. (b) Without limiting immediately 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 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 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; (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 Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b). (c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) 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 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. (f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document. (g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 4 contracts
Sources: Credit Agreement (Allegro Microsystems, Inc.), Credit Agreement (Allegro Microsystems, Inc.), Credit Agreement (Allegro Microsystems, Inc.)
Return of Certain Payments. (a) If Each Lender and each Issuing Bank (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender or Issuing Bank (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Loan Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein rights of such Lender with respect to such amount and (y) the receipt by any Recipient of a Payment shall not pay, prepay, repay, discharge or in otherwise satisfy any Obligations owed to such Lender or Issuing Bank by the Borrower or any other Loan DocumentParty, this Section 9.16 will not create any additional Obligations in each case, except to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 3 contracts
Sources: Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.), Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.), Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.)
Return of Certain Payments. (ai) If Each Lender (and each participant of any of the foregoing, by its acceptance of a participation interest) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Lender (each, a "Payment Recipient Recipient") from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an “Erroneous a "Payment”") and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment shall at all times remain the property of the Administrative Agent, and such 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) shall promptly, but in no event later than two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(iii) Any Payment required to be returned by a Payment Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Payment Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of SOFR and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (and/or from any time to time in effect. Each Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank hereby agrees that it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fiv) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other party hereto hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by any Payment Recipient of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower or any other party hereto (except to the contrary herein extent that the funds used to make such Payment were received from the Borrower or in any other Loan Document, this Section 9.16 will not create any additional Obligations disbursed from the Collection Account as repayment of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations).
Appears in 3 contracts
Sources: Loan and Servicing Agreement (AG Twin Brook Capital Income Fund), Loan and Servicing Agreement (AGTB Private BDC), Loan and Servicing Agreement (AGTB Private BDC)
Return of Certain Payments. (ai) If Each Buyer (and each Participant of any of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) Buyer that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Buyer (any of the foregoing, a “Erroneous Payment Recipient Recipient”) from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Erroneous Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Erroneous Payment Recipient on its behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principalany Repurchase Price, interestPrice Differential, feesPrincipal Payment, distribution Income, fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Erroneous Payment Recipient under this clause (aArticle 27(c) shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding limitation of clause (a)i) above, each Erroneous Payment Recipient hereby further acknowledges and agrees that if it such Erroneous Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Erroneous Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Erroneous Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(iii) Any Payment required to be returned by an Erroneous Payment Recipient under this Article 27(c) shall be made in immediately available funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Erroneous Payment Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the federal funds rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank that has received such time to time in effect. Each Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank hereby agrees that it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fiv) Each party’s obligationsSeller, agreements Guarantor and waivers under this Section 9.16 shall survive Pledgor hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Buyer that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein or in rights of such Buyer with respect to such amount and (y) the receipt by any other Loan DocumentErroneous Payment Recipient of a Payment shall not pay, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents prepay, repay, discharge or otherwise increase satisfy any Repurchase Obligations owed to such Buyer by Seller, Guarantor or alter such ObligationsPledgor.
Appears in 3 contracts
Sources: Master Repurchase and Securities Contract Agreement (Fortress Credit Realty Income Trust), Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase and Securities Contract Agreement (ACRES Commercial Realty Corp.)
Return of Certain Payments. (a) If Each Lender hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting the immediately preceding clause (a), each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, 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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.164
Appears in 2 contracts
Sources: Credit Agreement (New Fortress Energy Inc.), Credit Agreement (New Fortress Energy Inc.)
Return of Certain Payments. (ai) If Each Lender (and each participant of any of the Administrative foregoing, by its acceptance of a participation interest) hereby acknowledges and agrees that if the Agent notifies a Lender, Issuing Bank or Secured Party, such Lender that the Agent has determined in its sole discretion that any funds (or any Person who has portion thereof) received funds on behalf of a Lender, Issuing Bank or Secured Party by such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipienteach, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment shall at all times remain the property of the Administrative Agent, and such 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) shall promptly, but in no event later than two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repaymentupon demand from the Agent, the details thereof it shall promptly, but in no event later than one (in reasonable detail1) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered as to which such a demand was made.
(iii) Any Payment required to be returned by a Payment Recipient under this Section shall be made in same day funds in the Administrative Agent for any reasoncurrency so received, after demand therefor by together with interest thereon in respect of each day from and including the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received date such Erroneous Payment (or portion thereof) (and/or from any was received by such Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or date such lesser amount as is repaid to the Administrative Agent may specify) (such assignment at the greater of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued SOFR and unpaid interest (with the assignment fee to be waived a rate determined by the Administrative Agent in such instance), and is accordance with banking industry rules on interbank compensation from time to time in effect. Each Payment Recipient hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (oragrees that it shall not assert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fiv) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other party hereto hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by any Payment Recipient of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower or any other party hereto (except to the contrary herein extent that the funds used to make such Payment were received from the Borrower or in any other Loan Document, this Section 9.16 will not create any additional Obligations disbursed from the Collection Account as repayment of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations).
Appears in 2 contracts
Sources: Loan and Security Agreement (Stepstone Private Credit Fund LLC), Loan and Security Agreement (Stepstone Private Credit Fund LLC)
Return of Certain Payments. (a) If Each Lender and each Issuing Bank (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender or Issuing Bank (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower and each other Loan Party hereby agrees that the receipt by any Recipient of a Payment shall not pay, agreements and waivers under this Section 9.16 shall survive prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender or Issuing Bank by the resignation Borrower or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 2 contracts
Sources: Credit Agreement (New Fortress Energy Inc.), Credit Agreement (New Fortress Energy Inc.)
Return of Certain Payments. (a) If Each Lender and each Letter of Credit Issuer (and each Participant of any of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) Letter of Credit Issuer that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Lender or Letter of Credit Issuer (any of the foregoing, a “Payment Recipient Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment shall at all times remain the property of the Administrative Agent, and such 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) shall promptly, but in no event later than two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section 12.14 shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Payment Recipient under this Section 12.14 shall be 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 Payment (or portion thereof) was received by such Payment Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the applicable Overnight Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (and/or from any time to time in effect. Each Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank hereby agrees that it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable applicable Law, no Payment Recipient shall assert permitted by applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive Borrower Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender or any Letter of Credit Issuer that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein rights of such Lender or in Letter of Credit Issuer with respect to such amount and (y) the receipt by any other Loan DocumentPayment Recipient of a Payment shall not pay, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents prepay, repay, discharge or otherwise increase satisfy any Obligations owed to such Lender or alter such ObligationsLetter of Credit Issuer by the Borrower Parties.
Appears in 2 contracts
Sources: Revolving Credit Agreement (AGTB Private BDC), Revolving Credit Agreement (Carlyle Secured Lending III)
Return of Certain Payments. (a) If Each Lender and each Issuing Bank (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender or Issuing Bank (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower and each other Loan Party hereby agrees that the receipt by any Recipient of a Payment shall not pay, agreements and waivers under this Section 9.16 shall survive prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender or Issuing Bank by the resignation Borrower or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 2 contracts
Sources: Credit Agreement (New Fortress Energy Inc.), Credit Agreement (New Fortress Energy Inc.)
Return of Certain Payments. (a) If Each Lender (and each Lender Participant, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent or the Collateral Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent or the Collateral Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a "Recipient") from the Administrative Agent or the Collateral Agent (or any of its Affiliates their respective 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 behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an “Erroneous a "Payment”") and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the 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 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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent or the Collateral Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt or the Collateral Agent, as applicable, of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lenderor the Collateral Agent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offas applicable, net and apply any and all amounts at any time owing to such Lenderit shall promptly, Issuing Bank or Secured Party under any Loan Document against any amount due but in no event later than one Business Day thereafter, return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions Collateral Agent, as applicable, the amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be made in same-day funds in the Administrative Agent for any reasoncurrency so received, after demand therefor by the Administrative Agent together with interest thereon (unless such Payment has been returned in accordance with immediately preceding clause (a), ) above) in respect of each day from any Lender or Issuing Bank that has received and including the date such Erroneous Payment (or portion thereof) (and/or from any Payment was received by such Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or date such lesser amount as is repaid to the Administrative Agent may specify) (such assignment or the Collateral Agent, as applicable, at the greater of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued Federal Funds Effective Rate and unpaid interest (with the assignment fee to be waived a rate determined by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Collateral Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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 banking industry rules on interbank compensation from time to time in effect. Each Recipient hereby agrees that it shall not assert and, to the terms of this Agreement.
(e) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the Administrative Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “"discharge for value” " or any similar doctrine.
(fd) Each party’s obligations, agreements The Company and waivers under each other party to this Section 9.16 shall survive Agreement hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Recipient that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent or the Collateral Agent, as applicable, shall be subrogated to all the contrary herein rights of such Recipient with respect to such amount and (y) the receipt by any Recipient of a Payment shall not pay, prepay, repay, discharge or in otherwise satisfy any Obligations owed to such Recipient by the Company or any other Loan Document, party to this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsAgreement.
Appears in 2 contracts
Sources: Credit and Security Agreement (T Series Middle Market Loan Fund LLC), Credit and Security Agreement (T Series Middle Market Loan Fund LLC)
Return of Certain Payments. (a) If Each Lender (and each Lender Participant, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent or the Collateral Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent or the Collateral Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a "Recipient") from the Administrative Agent or the Collateral Agent (or any of its Affiliates their respective 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 behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution fees or otherwise, ; individually and collectively, an “Erroneous a "Payment”") and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the 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 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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent or the Collateral Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt or the Collateral Agent, as applicable, of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lenderor the Collateral Agent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offas applicable, net and apply any and all amounts at any time owing to such Lenderit shall promptly, Issuing Bank or Secured Party under any Loan Document against any amount due but in no event later than one Business Day thereafter, return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions Collateral Agent, as applicable, the amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect as to which such Erroneous Payment a demand 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 Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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 Agreementmade.
(e) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 2 contracts
Sources: Credit and Security Agreement (T Series Middle Market Loan Fund LLC), Credit and Security Agreement (T Series Middle Market Loan Fund LLC)
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Collateral Agent or Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender the Collateral Agent or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a "Recipient Lender") from the Collateral Agent or the Administrative Agent (or any of its Affiliates Affiliates), as applicable, were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an “Erroneous a "Payment”") and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Collateral Agent or the Administrative Agent, as applicable, the amount of any such Payment as to which such a demand was made. A notice of the Collateral Agent or the Administrative Agent, as applicable, to any Recipient Lender under this Section 12.21(a) shall be conclusive, absent manifest error.
(b) Without limitation of clause (a) above, each Recipient Lender further acknowledges and agrees that if such Recipient Lender receives a Payment from the Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a "Payment Notice"), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it 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 Erroneous Payment (or portion thereof) as to which such a demand was made, .
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.21 shall be 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 to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Rate SOFR and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Each Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Payment Recipient 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 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 Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was shall 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;
(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; assert and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Secured Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by any Recipient Lender of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower or any other Secured Party except, in each case, to the contrary herein or extent that the funds used to make such Payment were received from the Borrower in any other Loan Document, this Section 9.16 will not create any additional Obligations repayment of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.. ARTICLE XIII
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender and each other Secured Party (other than the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank the Collateral Agent) (any such Lender, Issuing Bank, other Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) hereby agrees that (i) if the Administrative Agent notifies such Payment Recipient that any Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative any 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 Bank, 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 fees 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 Administrative Agent pending its return or repayment as contemplated below in this Section 12.15(a) and held in trust for the benefit of the Administrative Agent, and such 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 two three Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Effective Rate and a rate determined by the Administrative 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 Payment Recipient 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 Administrative Agent for the return of any Erroneous Payments received, including, without limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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) payment from the Administrative any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)Agent, (y) that was not preceded or accompanied by a Payment Noticenotice of payment sent by such 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 case;
, if an error has been made (A) in the case of immediately preceding clauses (x) or (y), and an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) each such Payment Recipient is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment, and to the extent permitted by applicable law, such Payment Recipient shall not assert any right or (B) an error has been made (in claim to the case Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of immediately preceding clause (z))set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Payment Recipient agrees that, in each such case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify the Administrative Agent of its receipt such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to the Administrative Agent the amount of any such paymentErroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), prepayment together with interest thereon in respect of each day from and including the date such Erroneous Payment (or repaymentportion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. For the avoidance of doubt, the details thereof (in reasonable detail) and that it is so notifying failure to deliver a notice to the Administrative Agent pursuant to this Section 9.16(b)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, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request notice to such Lender or Issuing Bank at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender or Issuing Bank (the “Erroneous Payment Assigning Lender”) shall be deemed to have assigned its 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 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 the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance by reference pursuant to a Platform an approved electronic platform as to which the 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 promissory notes evidencing such Loans to the Borrower or the Administrative AgentAgent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (iiB) the 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 Administrative Agent as the assignee Lender shall become a Lender or Issuing BankLender, 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 BankLender, 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 or assigning Issuing BankLender, (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 or Issuing Bank and such Commitments shall remain available in accordance with the terms of this Agreement.
(e) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Return of Certain Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Bank or Secured Party, Lender or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party Lender (any such Lender or Issuing Bank other recipient (any such Lender, Issuing Bank, Secured Party or other recipientand each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the 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 Bank, 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 Administrative Agent pending its return or repayment as contemplated below in this Section 8.14 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Bank or Secured Party 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 two Business Days thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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 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 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;
(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 Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender and each other Secured Party (other than the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank the Collateral Agent) (any such Lender, Issuing Bank, other Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) hereby agrees that (i) if the Administrative Agent notifies such Payment Recipient that any Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative any 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 Bank, 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 fees 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 Administrative Agent pending its return or repayment as contemplated below in this Section 12.15(a) and held in trust for the benefit of the Administrative Agent, and such 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 two three Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of effect and (ii) to the Administrative Agent to any extent permitted by applicable law, such Payment Recipient under this clause (a) shall be conclusivenot assert any right or claim to the Erroneous Payment, absent manifest error.and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any
(b) Without limiting immediately 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) payment from the Administrative any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)Agent, (y) that was not preceded or accompanied by a Payment Noticenotice of payment sent by such 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 case;
, if an error has been made (A) in the case of immediately preceding clauses (x) or (y), and an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) each such Payment Recipient is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment, and to the extent permitted by applicable law, such Payment Recipient shall not assert any right or (B) an error has been made (in claim to the case Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of immediately preceding clause (z))set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Payment Recipient agrees that, in each such case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify the Administrative Agent of its receipt such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to the Administrative Agent the amount of any such paymentErroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), prepayment together with interest thereon in respect of each day from and including the date such Erroneous Payment (or repaymentportion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. For the avoidance of doubt, the details thereof (in reasonable detail) and that it is so notifying failure to deliver a notice to the Administrative Agent pursuant to this Section 9.16(b)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, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request notice to such Lender or Issuing Bank at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender or Issuing Bank (the “Erroneous Payment Assigning Lender”) shall be deemed to have assigned its 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 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 the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance by reference pursuant to a Platform an approved electronic platform as to which the 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 promissory notes evidencing such Loans to the Borrower or the Administrative AgentAgent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (iiB) the 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 Administrative Agent as the assignee Lender shall become a Lender or Issuing BankLender, 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 BankLender, 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 or assigning Issuing BankLender, (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 or Issuing Bank and such Commitments shall remain available in accordance with the terms of this Agreement.
(e) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Return of Certain Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Bank 2023 Revolving Credit Lender or Secured PartyLetter of Credit Issuer, or any Person (other than a Credit Party) who has received funds on behalf of a Lender, Issuing Bank or Secured Party such 2023 Revolving Credit Lender or Issuing Bank Letter of Credit Issuer (any such Lender, Issuing Bank, Secured Party or other recipient2023 Revolving Credit Lender Letter of Credit Issuer (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding pursuant to clause (b)) of this Section 12.16) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the 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 2023 Revolving Credit Lender, Issuing Bank, Secured Party Letter of Credit 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 Administrative Agent pending its return or repayment as contemplated below in this Section 12.16 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Bank 2023 Revolving Credit Lender or Secured Party Letter of Credit 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 two Business Days thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a) of this Section 12.16, each 2023 Revolving Credit Lender, Letter of Credit Issuer or any Person (other than a Credit Party) who has received funds on behalf of a 2023 Revolving Credit Lender or Letter of Credit Issuer (and each of their respective successors and assigns), 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 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 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 2023 Revolving Credit Lender or Letter of Credit 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) 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 2023 Revolving Credit Lender or Letter of Credit 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 Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b12.16(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 12.16(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.16(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Bank 2023 Revolving Credit Lender or Secured Party Letter of Credit Issuer hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank 2023 Revolving Credit Lender or Secured Party Letter of Credit Issuer under any Loan Credit Document, or otherwise payable or distributable by the Administrative Agent to such 2023 Revolving Credit Lender or Letter of Credit Issuer under any Credit Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this AgreementSection 12.16.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
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Return of Certain Payments. (a) If Each Lender and each Issuing Bank (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the 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 Administrative Agent, and such 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 two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.such
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section 8.02 shall be made in immediately available funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right r ight of set-off or recoupment with respect or similar r ight to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Loan Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein rights of such Lender with respect to such amount and (y) the receipt by any Recipient of a Payment shall not pay, prepay, repay, discharge or in otherwise satisfy any Obligations owed to such Lender or Issuing Bank by the Borrower or any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
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Return of Certain Payments. (ai) If the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party Buyer or other recipient, a “Payment Recipient”) recipient that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient Buyer or other recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalfrecipient) (any such funds, whether received as a payment, prepayment or repayment of principalany Repurchase Price, interestPrice Differential, feesPrincipal Payment, distribution fees or otherwise, individually and collectively, an “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment Unintended Recipient shall at all times remain the property of the Administrative Agent, and such 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 two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available 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 Unintended Recipient to the date such amount is repaid to the Administrative Agent in same day immediately available funds at the greater of the Overnight Rate and 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 effectRate. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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 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 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;
(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 Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the extent permitted by Applicable Lawapplicable law, no Payment Recipient each party hereto shall not assert any right or claim to an the 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 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 102 LEGAL_US_E # 160815361.8 doctrine. A notice of Administrative Agent to any Unintended Recipient under this Section 30(d)(i) shall be conclusive, absent manifest error.
(fii) Each party’s obligationsWithout limiting the immediately preceding Section 30(d)(i), agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the each Buyer further agrees that if it receives funds from Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations Agent (or any portion thereofof its Affiliates) under (A) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Administrative Agent (or any Loan Document.
of its Affiliates) with respect to such funds (ga “Payment Notice”), (B) Notwithstanding anything to the contrary herein that was not preceded or in any other Loan Documentaccompanied by a Payment Notice, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.or
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Return of Certain Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Bank or Secured Party, Lender or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party Lender (any such Lender or Issuing Bank other recipient (any such Lender, Issuing Bank, Secured Party or other recipientand each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the 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 Bank, 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 Administrative Agent pending its return or repayment as contemplated below in this Section 8.14 and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Bank or Secured Party 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 two Business Days thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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 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 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) 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 Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.14(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.14(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 8.14(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Bank or Secured Party Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such LenderLender under any Loan Document, Issuing Bank or Secured Party otherwise payable or distributable by the Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement).
(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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank 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/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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class Loan Documents with respect to which such Erroneous Payment was made amount (the “Erroneous Payment Impacted ClassSubrogation Rights”) in and (y) an amount equal Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower; provided that this Section 8.14 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the Erroneous Payment Return Deficiency amount (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitmentsand/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived not been made by the Administrative Agent in such instance)Agent; provided, and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orfurther, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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, that for the avoidance of doubt, its obligations under immediately preceding clauses (x) and (y) shall not apply to the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to extent any such assigning Lender or assigning Issuing Bank. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce is, and solely with respect to the Commitments amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from, or on behalf of (including through the exercise of remedies under any Lender or Issuing Bank and such Commitments shall remain available in accordance with Loan Document), the terms Borrower for the purpose of this Agreementa payment on the Obligations.
(e) 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 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.
(f) . Each party’s obligations, agreements and waivers under this Section 9.16 8.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
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Return of Certain Payments. (ai) If Each Lender (and each Participant of any of the foregoing, by its acceptance of a Participation) and each other Secured Party hereby acknowledges and agrees that if the Administrative Agent or the Collateral Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or such Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent or the Collateral Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment any Recipient from the Administrative Agent or the Collateral Agent (or any of its Affiliates their respective 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the 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 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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent or the Collateral Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding limitation of clause (a)i) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt or the Collateral Agent, as applicable, of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lenderor the Collateral Agent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offas applicable, net and apply any and all amounts at any time owing to such Lenderit shall promptly, Issuing Bank or Secured Party under any Loan Document against any amount due but in no event later than one Business Day thereafter, return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions Collateral Agent, as applicable, the amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered as to which such a demand was made.
(iii) Any Payment required to be returned by a Recipient under this Section shall be made in same day funds in the Administrative Agent for any reasoncurrency so received, after demand therefor by together with interest thereon in respect of each day from and including the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received date such Erroneous Payment (or portion thereof) (and/or from any Payment was received by such Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or date such lesser amount as is repaid to the Administrative Agent may specify) (such assignment or the Collateral Agent, as applicable, at the greater of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued federal funds rate and unpaid interest (with the assignment fee to be waived a rate determined by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Collateral Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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 banking industry rules on interbank compensation from time to time in effect. Each Recipient hereby agrees that it shall not assert and, to the terms of this Agreement.
(e) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the Administrative Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(fiv) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive The Borrower hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent or the Collateral Agent, as applicable, shall be subrogated to all the rights of such Lender with respect to such amount, (y) the receipt by any Recipient of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower (except to the contrary herein or extent that the funds used to make such Payment were received from the Borrower in repayment of the Obligations) and (z) to the extent that a Payment was in any other Loan Document, this Section 9.16 will not create way or at any additional Obligations time credited as payment or satisfaction of any of the Loan Parties Obligations, the Obligations or any part thereof that were so credited, and all rights of the Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had never been received (except to the extent that the funds used to make such Payment (A) were received from the Borrower in repayment of the Obligations or (B) constituted proceeds of dispositions of the Collateral resulting from any exercise of remedies under the Loan Documents or otherwise increase or alter such ObligationsTransaction Documents).
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a “Recipient Lender”) from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient Lender under this clause (aSection 12.21(a) shall be conclusive, absent manifest or demonstrable error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby Lender further acknowledges and agrees that if it such Recipient Lender receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.21 shall be 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 Payment (or portion thereof) was received by such Recipient Lender to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of SOFR and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any time to time in effect. Each Recipient Lender or Issuing Bank hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive The Borrower hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein or in rights of such Lender with respect to such amount and (y) the receipt by any other Loan DocumentRecipient Lender of a Payment shall not pay, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents prepay, repay, discharge or otherwise increase or alter satisfy any Obligations owed to such ObligationsLender by the Borrower.
Appears in 1 contract
Return of Certain Payments. (ai) If the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party Buyer or other recipient, a “Payment Recipient”) recipient that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient Buyer or other recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalfrecipient) (any such funds, whether received as a payment, prepayment or repayment of principalany Repurchase Price, interestPrice Differential, feesPrincipal Payment, distribution fees or otherwise, individually and collectively, an “Erroneous Payment” and any such recipient, an “Unintended Recipient”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment Unintended Recipient shall at all times remain the property of the Administrative Agent, and such 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 two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received)immediately available 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 Unintended Recipient to the date such amount is repaid to the Administrative Agent in same day immediately available funds at the greater of the Overnight Rate and 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 effectRate. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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 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 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;
(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 Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the extent permitted by Applicable Lawapplicable law, no Payment Recipient each party hereto shall not assert any right or claim to an the 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 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 LEGAL_US_E # 160815361.8 doctrine. A notice of Administrative Agent to any Unintended Recipient under this Section 30(d)(i) shall be conclusive, absent manifest error.
(fii) Each party’s obligationsWithout limiting the immediately preceding Section 30(d)(i), agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the each Buyer further agrees that if it receives funds from Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations Agent (or any portion thereofof its Affiliates) under (A) that is in a different amount than, or on a different date from, that specified in a notice of payment or calculation statement sent by Administrative Agent (or any Loan Document.
of its Affiliates) with respect to such funds (ga “Payment Notice”), (B) Notwithstanding anything to the contrary herein that was not preceded or in any other Loan Documentaccompanied by a Payment Notice, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.or
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Return of Certain Payments. (a) If the Administrative Agent (x) notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the 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 Bank, 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 Administrative Agent pending its return or repayment as contemplated below in this Section 7.12 and held in trust for the benefit of the Administrative Agent, and such 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 two (2) Business Days thereafterthereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (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 Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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, Issuing Bank 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 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 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 Bank 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) 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 Bank 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 (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 Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b7.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 7.12(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.12(a) or on whether or not an Erroneous Payment has been made.
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender, Issuing Bank or Secured Party under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount due to that the Administrative Agent has demanded to be returned under immediately preceding clause (a) or under the indemnification provisions of this Agreement).
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request notice to such Lender or Issuing Bank at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender or Issuing Bank shall be deemed to have assigned its Loans or Letters of Credit (but not its Commitments) of the relevant Class ), as applicable, 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 Loans or Letter of Credit (but not its 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 the assignment fee to be waived by the Administrative Agent in such instanceinterest), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative AgentAgent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (iiB) the Administrative Agent as the assignee Lender or Issuing Bank shall be deemed to acquire have acquired the Erroneous Payment Deficiency Assignment and Assignment, (iiiC) upon such deemed acquisition, the Administrative Agent as the assignee Lender or Issuing Bank 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 Lender or assigning Issuing Bank, (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 or Issuing Bank and such Commitments shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 8.6 (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 or Issuing Bank 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 Issuing Bank (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender or Issuing Bank (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 or Issuing Bank 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 or Issuing Bank 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, Issuing Bank or Secured Party, to the rights and interests of such Lender, Issuing Bank 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 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 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 Borrower; provided that this Section 7.12 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for 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 Administrative Agent from the Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by Applicable 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 setoff or recoupment with respect to any demand, claim or counterclaim by the 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.
(fg) Each party’s obligations, agreements and waivers under this Section 9.16 7.12 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender or Issuing Bank, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Return of Certain Payments. (a) If the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party Lender or other recipient, a “Payment Recipient”) ), that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the 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 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 Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Bank or Secured Party 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 two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (aSection 8.12(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 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 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) (A) in the case of immediately preceding clauses clause (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 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 Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.12(b).
(c) Each Lender, Issuing Bank or Secured Party Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party Lender under any Loan Document Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (aSection 8.12(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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 8.12(a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request notice to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)interest, and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform an approved electronic platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and Assignment, (iii) upon such deemed acquisition, the 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 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 shall be reduced by the net proceeds of the sale of such Loan (or assigning Issuing Bankportion 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). 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 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 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 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 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 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 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.
(fg) Each party’s obligations, agreements and waivers under this Section 9.16 8.12 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender (and each Participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent or the Collateral Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent or the Collateral Agent, as applicable, has reasonably determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Agent or the Collateral Agent (or any of its Affiliates their respective 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two Business Days thereafterafter the later of (x) the date on which such Payment was received and (y) the date on which notice of such Payment was received by the Recipient, return to the 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 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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent or the Collateral Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt or the Collateral Agent, as applicable, of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lenderor the Collateral Agent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offas applicable, net and apply any and all amounts at any time owing to such Lenderit shall promptly, Issuing Bank or Secured Party under any Loan Document against any amount due but in no event later than one Business Day thereafter, return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions Collateral Agent, as applicable, the amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be made in same-day funds in the Administrative Agent for any reasoncurrency so received, after demand therefor by the Administrative Agent together with interest thereon (unless such Payment has been returned in accordance with immediately preceding clause (a), ) above) in respect of each day from any Lender or Issuing Bank that has received and including the date such Erroneous Payment (or portion thereof) (and/or from any Payment was received by such Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or date such lesser amount as is repaid to the Administrative Agent may specify) (such assignment or the Collateral Agent, as applicable, at the greater of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued Overnight Rate/Federal Funds Rate and unpaid interest (with the assignment fee to be waived a rate determined by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Collateral Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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 banking industry rules on interbank compensation from time to time in effect. Each Recipient hereby agrees that it shall not assert and, to the terms of this Agreement.
(e) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the Administrative Agent or the Collateral Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(fd) Each party’s obligations, agreements The Borrower and waivers under each other party to this Section 9.16 shall survive Agreement hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Recipient that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent or the Collateral Agent, as applicable, shall be subrogated to all the contrary herein rights of such Recipient with respect to such amount and (y) the receipt by any Recipient of a Payment shall not pay, prepay, repay, discharge or in otherwise satisfy any Obligations owed to such Recipient by the Borrower or any other Loan Document, party to this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsAgreement.
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a “Recipient Lender”) from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient Lender under this clause (aSection 12.21(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby Lender further acknowledges and agrees that if it such Recipient Lender receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.21 shall be 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 Payment (or portion thereof) was received by such Recipient Lender to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of SOFR and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any time to time in effect. Each Recipient Lender or Issuing Bank hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive The Borrower hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein or in rights of such Lender with respect to such amount and (y) the receipt by any other Loan DocumentRecipient Lender of a Payment shall not pay, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents prepay, repay, discharge or otherwise increase or alter satisfy any Obligations owed to such ObligationsLender by the Borrower.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Apollo Debt Solutions BDC)
Return of Certain Payments. (ai) If Each Buyer (and each Participant of any of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) Buyer that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Buyer (any of the foregoing, a “Erroneous Payment Recipient Recipient”) from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Erroneous Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Erroneous Payment Recipient on its behalfRecipient) (any such funds, whether received as a payment, prepayment or repayment of principalany Repurchase Price, interestPrice Differential, feesPrincipal Payment, distribution Income, fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Erroneous Payment Recipient under this clause (aArticle 28(e) shall be conclusive, absent manifest error.
(bii) Without limiting immediately preceding limitation of clause (a)i) above, each Erroneous Payment Recipient hereby further acknowledges and agrees that if it such Erroneous Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Erroneous Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Erroneous Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(iii) Any Payment required to be returned by an Erroneous Payment Recipient under this Article 28(e) shall be made in immediately available funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Erroneous Payment Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the federal funds rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank that has received such time to time in effect. Each Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank hereby agrees that it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fiv) Each party’s obligationsSeller, agreements Guarantor and waivers under this Section 9.16 shall survive Pledgor hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Buyer that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein or in rights of such Buyer with respect to such amount and (y) the receipt by any other Loan DocumentErroneous Payment Recipient of a Payment shall not pay, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents prepay, repay, discharge or otherwise increase satisfy any Repurchase Obligations owed to such Buyer by Seller, Guarantor or alter such ObligationsPledgor.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Starwood Credit Real Estate Income Trust)
Return of Certain Payments. (a) If Each Lender (and each participant of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Lender (any of the foregoing, a “Payment Recipient Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment shall at all times remain the property of the Administrative Agent, and such 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) shall promptly, but in no event later than two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (aSection 9.12(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Payment Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Payment Recipient under this Section 9.12 shall be made in same day funds in US Dollars, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Payment Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (and/or from any time to time in effect. Each Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank hereby agrees that it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Credit Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by a Payment Recipient of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower or any other Credit Party, provided that, for the avoidance of doubt, the immediately preceding clauses (x) and (y) shall not apply to the contrary herein 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 Administrative Agent from the Borrower or in any other Loan Document, this Section 9.16 will not create any additional Obligations Credit Party for the purpose of the Loan Parties under the Loan Documents or otherwise increase or alter making such Obligationserroneous Payment.
Appears in 1 contract
Sources: 364 Day Bridge Credit and Guaranty Agreement (Entegris Inc)
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a “Recipient Lender”) from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient Lender under this clause (aSection 12.21(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby Lender further acknowledges and agrees that if it such Recipient Lender receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.21 shall be 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 Payment (or portion thereof) was received by such Recipient Lender to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of SOFR and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any time to time in effect. Each Recipient Lender or Issuing Bank hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower hereby agrees that (x) in the event any Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, agreements the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and waivers (y) the receipt by any Recipient Lender of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower (except to the extent that the funds used to make such Payment were received from, or on behalf of (including through the exercise of remedies under any Transaction Document) the Borrower or disbursed from the Collection Account as repayment of such Obligations); provided that this Section 9.16 12.21 shall survive not be interpreted to increase (or accelerate the resignation due date for), or replacement have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower 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, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: Loan and Servicing Agreement (First Eagle Private Credit Fund)
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a “Recipient Lender”) from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two (2) Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient Lender under this clause (aSection 12.23(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby Lender further acknowledges and agrees that if it such Recipient Lender receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than two (c2) Each LenderBusiness Days thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.23 shall be 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 Payment (or portion thereof) was received by such Recipient Lender to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of SOFR and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any time to time in effect. Each Recipient Lender or Issuing Bank hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Secured Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by any Recipient Lender of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower or any other Secured Party except, in each case, to the contrary herein or extent that the funds used to make such Payment were received from the Borrower in any other Loan Document, this Section 9.16 will not create any additional Obligations repayment of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower and each other Loan Party hereby agrees that the receipt by any Recipient of a Payment shall not pay, agreements and waivers under this Section 9.16 shall survive prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the resignation Borrower or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a "Recipient Lender") from the Administrative Agent (or any of its Affiliates Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an “Erroneous a "Payment”") and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment as to which such a demand was made. A notice of the Administrative Agent to any Recipient Lender under this Section 12.21(a) shall be conclusive, absent manifest error.
(b) Without limitation of clause (a) above, each Recipient Lender further acknowledges and agrees that if such Recipient Lender receives a Payment from the Administrative Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a "Payment Notice"), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it 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, .
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.21 shall be 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 to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Rate SOFR and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Each Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Payment Recipient 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 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 Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”), (y) that was shall 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;
(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; assert and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its knowledge of such error) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lender, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately 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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower hereby agrees that (x) in the event any Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, agreements the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and waivers (y) the receipt by any Recipient Lender of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower (except to the extent that the funds used to make such Payment were received from, or on behalf of (including through the exercise of remedies under any Transaction Document) the Borrower or disbursed from the Collection Account as repayment of such Obligations); provided that this Section 9.16 12.21 shall survive not be interpreted to increase (or accelerate the resignation due date for), or replacement have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower 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, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: Loan and Servicing Agreement (First Eagle Private Credit Fund)
Return of Certain Payments. (a) If the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party Lender or other recipient, a “Payment Recipient”) ), that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the 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 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 Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender, Issuing Bank or Secured Party 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 two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (aSection 8.12(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 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 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) (A) in the case of immediately preceding clauses clause (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 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 Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b8.12(b).
(c) Each Lender, Issuing Bank or Secured Party Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party Lender under any Loan Document Document, or otherwise payable or distributable by the Administrative Agent to such Lender from any source, against any amount due to the Administrative Agent under immediately preceding clause (aSection 8.12(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 Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (aSection 8.12(a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request notice to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.have
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender (and each participant of any Lender, by its acceptance of a participation) hereby acknowledges and agrees that if the Collateral Agent or the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Collateral Agent or the Administrative Agent Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Lender (a “Recipient Lender”) from the Collateral Agent or the Administrative Agent (or any of its Affiliates Affiliates), as applicable, were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient Lender (whether or not known to such Recipient 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 fees or otherwise, ; individually and collectively, an a “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof)Payment, such Erroneous Payment Recipient Lender shall at all times remain the property of the Administrative Agent, and such 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 two one (1) Business Days Day thereafter, return to the Collateral Agent or the Administrative Agent Agent, as applicable, the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Collateral Agent or the Administrative Agent Agent, as applicable, to any Payment Recipient Lender under this clause (aSection 12.21(a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby Lender further acknowledges and agrees that if it such Recipient Lender receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (a “Payment Notice”), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Payment Recipient Lender otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) ), in each case;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient Lender agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
Agent, it shall promptly, but in no event later than one (c1) Each LenderBusiness Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient Lender under this Section 12.21 shall be 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 Payment (or portion thereof) was received by such Recipient Lender to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of SOFR and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any time to time in effect. Each Recipient Lender or Issuing Bank hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Law, no Payment Recipient shall assert permitted by Applicable Law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Secured Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) the receipt by any Recipient Lender of a Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the Borrower or any other Secured Party except, in each case, to the contrary herein or extent that the funds used to make such Payment were received from the Borrower in any other Loan Document, this Section 9.16 will not create any additional Obligations repayment of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Return of Certain Payments. (a) If Each Lender (and each Participant of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, but in any event excluding the Loan Parties and their Affiliates, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Overnight Rate/Federal Funds Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements The Borrower and waivers under this Section 9.16 shall survive each other Loan Party hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event an erroneous Payment (or any portion thereof) under is not recovered from any Loan Document.
Lender that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or in otherwise satisfy any Obligations owed by the Borrower or any other Loan DocumentParty except, this Section 9.16 will not create any additional Obligations in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 1 contract
Sources: Credit Agreement (Gogo Inc.)
Return of Certain Payments. (a) If Each Lender (and each Participant of any Lender, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be made in immediately available funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower and each other Loan Party hereby agrees that the receipt by any Recipient of a Payment shall not pay, agreements and waivers under this Section 9.16 shall survive prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the resignation Borrower or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 1 contract
Sources: Credit Agreement (Alkermes Plc.)
Return of Certain Payments. (a) If Each Lender (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. - 89- USActive 55697678.955697678.10 A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be 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 Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the federal funds rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive The Borrower hereby agrees that (x) in the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations event any Payment (or any portion thereof) under is not recovered from any Loan Document.
Recipient that has received such Payment (gor portion thereof) Notwithstanding anything for any reason, the Administrative Agent shall be subrogated to all the contrary herein or in rights of such Recipient with respect to such amount and (y) the receipt by any other Loan DocumentRecipient of a Payment shall not pay, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents prepay, repay, discharge or otherwise increase or alter satisfy any Obligations owed to such ObligationsRecipient by the Borrower.
Appears in 1 contract
Return of Certain Payments. (a) If Each Lender (and each Participant of any Lender, by its acceptance of a Participation) hereby acknowledges and agrees that if the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified specified
in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each LenderAgent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offit shall promptly, net and apply any and all amounts at any time owing to such Lenderbut in no event later than one Business Day thereafter, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be made in immediately available funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Recipient to the date such amount is not recovered by repaid to the Administrative Agent for any reason, after demand therefor at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with immediately preceding clause (a), banking industry rules on interbank compensation from any Lender or Issuing Bank time to time in effect. Each Recipient hereby agrees that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank it shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (orassert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the 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.
(fd) Each party’s obligationsThe Borrower and each other Loan Party hereby agrees that the receipt by any Recipient of a Payment shall not pay, agreements and waivers under this Section 9.16 shall survive prepay, repay, discharge or otherwise satisfy any Obligations owed to such Lender by the resignation Borrower or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such ObligationsParty.
Appears in 1 contract
Sources: Credit Agreement (Alkermes Plc.)
Return of Certain Payments. (a) If Each Lender (and each Participant of any Lender) hereby acknowledges and agrees that if the Administrative Paying Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Paying Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Paying Agent (or any of its Affiliates 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the Administrative Paying Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), 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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Paying Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Paying Agent (or any of its Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Paying Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Paying Agent of its receipt of such paymentoccurrence and, prepayment or repaymentupon demand from the Paying Agent, the details thereof (it shall promptly, but in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lenderno event later than one Business Day thereafter, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due return to the Administrative Paying Agent under immediately preceding clause (a) or under the indemnification provisions amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered as to which such a demand was made.
(c) Any Payment required to be returned by a Recipient under this Section shall be made in immediately available funds in the Administrative Agent for any reasoncurrency so received, after demand therefor by together with interest thereon in respect of each day from and including the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received date such Erroneous Payment (or portion thereof) (and/or from any Payment was received by such Recipient who received to the date such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon amount is repaid to the Administrative Agent’s request to such Lender or Issuing Bank Paying Agent at any time, the greater of the rate set forth in clause (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect to which such Erroneous Payment was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment definition of the Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued Alternative Rate and unpaid interest (with the assignment fee to be waived a rate determined by the Administrative Paying Agent in such instance), and is accordance with banking industry rules on interbank compensation from time to time in effect. Each Recipient hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (oragrees that it shall not assert and, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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) To the fullest extent permitted by Applicable Lawapplicable law, no Payment Recipient shall assert permitted by applicable law, hereby waives, any right or claim to an Erroneous retain such Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect or similar right to any demand, claim or counterclaim demand by the Administrative Paying 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: Loan and Security Agreement (Oportun Financial Corp)
Return of Certain Payments. (a) If Each Lender and each other Secured Party (other than the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank the Collateral Agent) (any such Lender, Issuing Bank, other Secured Party or other recipientrecipient (and each of their respective successors and assigns), a “Payment Recipient”) hereby agrees that (i) if the Administrative Agent notifies such Payment Recipient that any Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from the Administrative any 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 Bank, 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 fees 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 Administrative Agent pending its return or repayment as contemplated below in this Section 12.15(a) and held in trust for the benefit of the Administrative Agent, and such 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 two three Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Overnight Rate and Federal Funds Effective Rate and a rate determined by the Administrative 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 Payment Recipient 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 Administrative Agent for the return of any Erroneous Payments received, including, without limitation, waiver of any defense based on “discharge for value” or any similar theory or doctrine. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately 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) payment from the Administrative any Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment (a “Payment Notice”)Agent, (y) that was not preceded or accompanied by a Payment Noticenotice of payment sent by such 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 case;
, if an error has been made (A) in the case of immediately preceding clauses (x) or (y), and an error shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) each such Payment Recipient is deemed to have knowledge of such error at the time of receipt of such Erroneous Payment, and to the extent permitted by applicable law, such Payment Recipient shall not assert any right or (B) an error has been made (in claim to the case Erroneous Payment, and hereby waives, any claim, counterclaim, defense or right of immediately preceding clause (z))set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar theory or doctrine. Each Payment Recipient agrees that, in each such case, with respect to such payment, prepayment or repayment; and
(ii) such Payment Recipient it shall promptly (and, in all events, within one Business Day of its knowledge (or deemed knowledge) of such error) notify the Administrative Agent of its receipt such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in all events no later than one Business Day thereafter, return to the Administrative Agent the amount of any such paymentErroneous Payment (or portion thereof) as to which such a demand was made in same day funds (in the currency so received), prepayment together with interest thereon in respect of each day from and including the date such Erroneous Payment (or repaymentportion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. For the avoidance of doubt, the details thereof (in reasonable detail) and that it is so notifying failure to deliver a notice to the Administrative Agent pursuant to this Section 9.16(b)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, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender, Issuing Bank or Secured Party under any Loan Document against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(di) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request notice to such Lender or Issuing Bank at any time, then effective immediately (iwith the consideration therefor being acknowledged by the parties hereto), (A) such Lender or Issuing Bank (the “Erroneous Payment Assigning Lender”) shall be deemed to have assigned its 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 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 the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption Acceptance (or, to the extent applicable, an agreement incorporating an Assignment and Assumption Acceptance by reference pursuant to a Platform an approved electronic platform as to which the 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 promissory notes evidencing such Loans to the Borrower or the Administrative AgentAgent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (iiB) the 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 Administrative Agent as the assignee Lender shall become a Lender or Issuing BankLender, 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 BankLender, 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 or assigning Issuing BankLender, (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 or Issuing Bank and such Commitments shall remain available in accordance with the terms of this Agreement.
(eii) To Subject to Section 13.6 (but excluding, in all events, any assignment consent or approval requirements (whether from the extent permitted by Applicable LawBorrower or otherwise)), no Payment Recipient shall assert the Administrative Agent may, in its discretion, sell any right or claim Loans acquired pursuant to an Erroneous PaymentPayment 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 hereby waivesthe Administrative Agent shall retain all other rights, remedies and is deemed to waiveclaims against such ▇▇▇▇▇▇ (and/or against any recipient that receives funds on its respective behalf). In addition, any claiman Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, counterclaimor other distribution in respect of principal and interest, defense received by the Administrative Agent on or right of set-off or recoupment with respect to any demand, claim or counterclaim 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 for Agent) and (y) may, in the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement sole discretion of the Administrative Agent, be reduced by any amount specified by the termination of Administrative Agent in writing to the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Documentapplicable Lender from time to time.
(gd) Notwithstanding anything In the event that a Revolving Loan is assigned pursuant to clause (c) above, then (i) for purposes of determining “Required Lenders”, “Required Revolving Credit 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 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 be increased as a result of such assignment, (iii) the amount available to be borrowed by the Borrower 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, (iv) to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations extent appropriate and relating to the determination of the Loan Parties under proper recipient of any payment attributable to the Loan Documents or otherwise increase or alter applicable Erroneous Payment Assigned Amount, such Obligations.Erroneous Payment Assigned Amount shall be treated as a part of the Revolving Credit Exposure in respect of the Revolving Credit Facility held by the Administrative Agent with respect to the affected Class and (v) otherwise, such Erroneous Payment Assigned Amount shall be treated as a part of the Revolving Credit Exposure in respect of the Revolving Credit Facility held by the Erroneous Payment Assigning Lender, including for purposes of determining participations in Letters of Credit. For purposes hereof, “
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Return of Certain Payments. (a) If Each Lender (and each Lender Participant, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent or the Collateral Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party such Lender or Issuing Bank (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent or the Collateral Agent, as applicable, has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (or any portion thereof) received by such Payment Recipient Lender (any of the foregoing, a “Recipient”) from the Administrative Agent or the Collateral Agent (or any of its Affiliates their respective 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 behalfRecipient) (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)Payment, such Erroneous Payment Recipient shall at all times remain the property of the Administrative Agent, and such 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 two one Business Days Day thereafter, return to the 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 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 Administrative Agent in same day funds at the greater of the Overnight Rate and 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. A notice of the Administrative Agent or the Collateral Agent to any Payment Recipient under this clause (a) Section shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding limitation of clause (a)) above, each Payment Recipient hereby further acknowledges and agrees that if it such Recipient receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) Payment from the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) (x) that is in a different amount thanan amount, or on a date different from the amount and/or date from, that specified in a notice of payment, prepayment or repayment payment sent by the Administrative Agent or the Collateral Agent (or any of its their respective Affiliates) with respect to such payment, prepayment or repayment Payment (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;
(A) in , it understands and agrees at the case time 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) receipt of such Payment that an error has been made (in the case of immediately preceding clause (z)), in each case, with respect and that it is deemed to such payment, prepayment or repayment; and
(ii) such Payment Recipient shall promptly (and, in all events, within one Business Day of its have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of its receipt or the Collateral Agent, as applicable, of such paymentoccurrence and, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying upon demand from the Administrative Agent pursuant to this Section 9.16(b).
(c) Each Lenderor the Collateral Agent, Issuing Bank or Secured Party hereby authorizes the Administrative Agent to set offas applicable, net and apply any and all amounts at any time owing to such Lenderit shall promptly, Issuing Bank or Secured Party under any Loan Document against any amount due but in no event later than one Business Day thereafter, return to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions Collateral Agent, as applicable, the amount of this Agreement.
(d) In the event that an Erroneous any such Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance with immediately preceding clause (a), from any Lender or Issuing Bank that has received such Erroneous Payment (or portion thereof) (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 Administrative Agent’s request to such Lender or Issuing Bank at any time, (i) such Lender or Issuing Bank shall be deemed to have assigned its Loans (but not its Commitments) of the relevant Class with respect as to which such Erroneous Payment a demand 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 Loans (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the 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 Loans to the Borrower or the Administrative Agent, (ii) the Administrative Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment and (iii) upon such deemed acquisition, the 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 Lender 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 Agreementmade.
(e) 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 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.
(f) Each party’s obligations, agreements and waivers under this Section 9.16 shall survive the resignation or replacement of the Administrative Agent, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(g) Notwithstanding anything to the contrary herein or in any other Loan Document, this Section 9.16 will not create any additional Obligations of the Loan Parties under the Loan Documents or otherwise increase or alter such Obligations.
Appears in 1 contract
Sources: Credit and Security Agreement (T Series Middle Market Loan Fund LLC)