Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 5 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such any Lender may be applied to or set off by such Lender Lenders against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderLenders, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLenders, and (b) if such Lender Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Lenders any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender Lenders will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 4 contracts
Sources: Subordination Agreement (BTHC VII Inc), Intercreditor and Lien Subordination Agreement (Whitehall Jewellers Inc), Subordination Agreement (Whitehall Jewelers Holdings, Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Term Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Term Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Term Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Term Note or Term Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Term Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment Term Notes held by it as contemplated by this Credit Loan Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 4 contracts
Sources: Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.), Term Loan Agreement (CAI International, Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed toto or participations in Swing Line Loans held by, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans held by, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, or participations in Swing Line Loans held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralcash collateral for Letters of Credit described in Sections 4.2(b) and (c) hereof, if any following the occurrence and during the continuation of the Obligations are due and payable and have not been paidan Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender, a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lendersuch Lender hereunder, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to it. At any time, without demand or notice (any such notice being expressly waived by Borrower), any Lender may, WITH THE PRIOR APPROVAL OF THE AGENT, setoff the same or any part thereof and apply the same to any liability or obligation of them. Regardless Borrower hereunder even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, Notes held by it its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Notwithstanding the foregoing, no Lender shall exercise a right of setoff if such exercise would limit or prevent the exercise of any other remedy or other recourse against the Borrower.
Appears in 3 contracts
Sources: Unsecured Revolving Credit Agreement (Amerivest Properties Inc), Revolving Credit Agreement (Amerivest Properties Inc), Unsecured Revolving Credit Agreement (Amerivest Properties Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed toto or participations in Swing Line Loans held by, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans held by, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, or participations in Swing Line Loans held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Each Lender shall notify the Administrative Agent of any exercise of any setoff pursuant to this Section 16.1.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CAI International, Inc.), Revolving Credit Agreement (CAI International, Inc.)
Setoff. The Borrower Borrowers hereby grants grant to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of any of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.)
Setoff. The Borrower hereby grants In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the Administrative Agent occurrence of, and each throughout the continuance of, any Event of the Lenders a continuing lienDefault, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon each Issuing Bank and against all deposits, credits, collateral the Swingline Lender and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy each subsequent holder of any collateralNote is hereby authorized by the Borrowers at any time or from time to time, if any of the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders without prior notice to the Borrower and or any securities or other property of the Borrower in the possession of Person, any such Lender may be applied prior notice being hereby expressly waived, to or set off by such Lender against the payment of Obligations and to appropriate and to apply any and all deposits (general or special, including, but not limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other liabilitiesIndebtedness at any time owing by that Lender, directthe Swingline Lender or that Issuing Bank or that subsequent holder to or for the credit or the account of a Borrower, whether or indirectnot matured, absolute or contingent, due or to become due, now existing or hereafter arising, against and on account of the due and unpaid obligations and liabilities of such Borrower to that Lender, the Swingline Lender or that Issuing Bank or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender, the Swingline Lender or that Issuing Bank or that subsequent holder shall have made any demand hereunder. Each Lender, the Swingline Lender or each Issuing Bank shall promptly give notice to the Company of any action taken by it under this Section 10.6, provided that any failure of such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDthe Swingline Lender or such Issuing Bank to give such notice to the Company shall not affect the validity of such setoff. Each of Lender, the Lenders Swingline Lender and each Issuing Bank agrees with each other Lender, the Swingline Lender and each other Issuing Bank a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such the Swingline Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness Issuing Bank receives and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrowerretains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment in respect of the Loans or L/C Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion share of the payments received by on all of the Lenders with respect such Obligations then owed to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, the Swingline Lender and the Issuing Banks hereunder, then such Lender, the Swingline Lender will make or such disposition and arrangements with Issuing Bank shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders with respect to such excessamount of the Loans and L/C Obligations and participations therein held by each such other Lender, either by way of distribution, pro tanto assignment of claims, subrogation Swingline Lender or otherwise Issuing Bank as shall result in each be necessary to cause such Lender, Swingline Lender receiving in respect of the Obligations and Reimbursement Obligations owed or such Issuing Bank to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of share such excess payment ratably with all the other Lenders, the Swingline Lender and the Issuing Banks; provided, however, that if any such purchase is made by any Lender, Swingline Lender or any Issuing Bank, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender, such disposition and arrangements Swingline Lender or Issuing Bank, the related purchases from the other Lenders, Swingline Lender or the Issuing Banks shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest; provided further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.19 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Noble Corp / Switzerland), Revolving Credit Agreement (Noble Corp / Switzerland)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender and Interest Rate Hedge Counterparty a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderObligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or Agent, such Lender (or any Lender Affiliate Affiliate) and such Interest Rate Hedge Counterparty and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders such Secured Party to the Borrower and any securities or other property of the Borrower in the possession of such Lender Secured Party may be applied to or set off by such Lender against the payment of Obligations, subject to Section 4.4; provided, that in the event that any Defaulting Lender will exercise any such right of setoff, (a) all amounts so set off will be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 15.13 and, pending such payment, will be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the other Lenders, and (b) the Defaulting Lender will provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower owing to such LenderDefaulting Lender as to which it exercised such right of setoff. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER SECURED PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Credit Agreement (Textainer Group Holdings LTD), Credit Agreement (Textainer Group Holdings LTD)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, (i) any deposits or other sums credited by or due from any of the Lenders or the Agent to any of the Borrower Domestic Borrowers and any securities or other property of any of the Borrower Domestic Borrowers in the possession of such Lender or the Agent may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of any of the Domestic Borrowers to such Lender and (ii) any deposits or other sums credited by or due from any of the Canadian Lenders or the Agent to the Canadian Borrower and any securities or other property of the Canadian Borrower in the possession of such Canadian Lender or the Agent may be applied to or set off by such Canadian Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Canadian Borrower to such Canadian Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of any of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, to such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Dave & Busters Inc), Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralcash collateral for Letters of Credit described in Sections 4.2(b) and (c) hereof, if any following the occurrence and during the continuation of the Obligations are due and payable and have not been paidan Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender owed to such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Credit Agreement (Safety Insurance Group Inc), Revolving Credit Agreement (Safety Insurance Group Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender the Administrative Agent against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the Administrative Agent and the other Lenders with respect to such excess, either by way excess in accordance with the provisions of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestSection 4.5.
Appears in 2 contracts
Sources: Credit Agreement (SeaCube Container Leasing Ltd.), Credit Agreement (Seacastle Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender the Administrative Agent against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the Administrative Agent and the other Lenders with respect to such excess, either by way excess in accordance with the provisions of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestSection 4.6.
Appears in 2 contracts
Sources: Credit Agreement (TAL International Group, Inc.), Credit Agreement (TAL International Group, Inc.)
Setoff. The Borrower hereby grants grant to the Administrative each Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative each Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative such Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralCollateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, Notes held by it its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Borders Group Inc), Senior Secured Credit Agreement (Pershing Square Capital Management, L.P.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of the Borrower in the possession of such Lender or such Subsidiary of the holding company owning such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by this the Credit Agreement and or constituting Reimbursement Obligations owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held Loans made by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Loans made by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Staples Inc), Revolving Credit Agreement (Staples Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of the Borrower in the possession of such Lender or such Subsidiary of the holding company owning such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by this Credit Agreement and owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations Agreement owed to, to such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, Loans made by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Loans made by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Credit Agreement (Staples Inc), Credit Agreement (Staples Inc)
Setoff. The Borrower Each of the Borrowers hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all depositsits deposits (excluding payroll, benefits and other trust accounts), credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender may may, without prior notice to any Borrower, be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lenders, a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations of Borrower to the Administrative Agent and each Lenderthe Lenders, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such any Lender or any Lender Affiliate entity under the control of Fleet National Bank and their its successors and assigns assigns, or in transit to any of them. Regardless of the adequacy of If any collateral, if payment is not made when due hereunder or under any of the Obligations are due and payable and have not been paidLoan Documents, after giving regard to applicable grace periods, if any, or if any deposits Event of Default or other sums credited by event which would entitle Agent or due from any of the Lenders to accelerate the Loan occurs, the same or any part thereof may to the fullest extent not prohibited by applicable law at any time or from time to time, without regard to the existence, sufficiency or adequacy of any other collateral, and without notice or compliance with any other condition precedent now or hereafter imposed by statute, rule of law or otherwise, all of which are hereby waived, be set off, appropriated and applied by Agent or a Lender against any Obligation of Borrower irrespective of whether demand shall have been made and although such Obligations may be unmatured, in such manner as Agent in its sole and absolute discretion may determine. Within five (5) Business Days of making any securities such set off, appropriation or other property of application, Agent agrees to notify Borrower thereof, provided the Borrower in failure to give such notice shall not affect the possession validity of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute appropriation or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lenderapplication. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER AGENT OR LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSLOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Loan Agreement (Kramont Realty Trust), Swingline Note (Kramont Realty Trust)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower any Obligor and any securities or other property of the Borrower such Obligor in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower such Obligor to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Obligors to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrowerany Obligor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower such Obligor at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 2 contracts
Sources: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderObligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Buca Inc /Mn)
Setoff. The Borrower hereby grants to During the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy continuance of any collateral, if any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of such Lender Bank may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDBank. Each of the Lenders Banks agrees with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and 57 -51- Notes held by it or Reimbursement Obligations obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Cabot Microelectronics Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender the Administrative Agent against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the Administrative Agent and the other Lenders with respect to such excess, either by way excess in accordance with the provisions of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestSection 4.5.
Appears in 1 contract
Setoff. The Borrower hereby grants In addition to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence of, and throughout the continuance of, any Event of Default, each Lender and the Swingline Lender and each subsequent holder of any Note is hereby authorized by the Borrowers at any time or from time to time, without prior notice to the Borrower or any other Person, any such prior notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including, but not limited to, Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts, and in whatever currency denominated) and any other Indebtedness at any time owing by that Lender or the possessionSwingline Lender or that subsequent holder to or for the credit or the account of a Borrower, custodywhether or not matured, safekeeping or control against and on account of the Administrative Agent due and unpaid obligations and liabilities of such Borrower to that Lender or the Swingline Lender or that subsequent holder under the Credit Documents, irrespective of whether or not that Lender or the Swingline Lender or that subsequent holder shall have made any demand hereunder. Each Lender or the Swingline Lender shall promptly give notice to the Company of any action taken by it under this Section 10.6, provided that any failure of such Lender or any the Swingline Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders give such notice to the Borrower and any securities or other property of Company shall not affect the Borrower in the possession validity of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDsetoff. Each of Lender and the Lenders Swingline Lender agrees with each other Lender and the Swingline Lender a party hereto that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness the Swingline Lender receives and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrowerretains any payment, whether by voluntary payment, exercise setoff or application of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, deposit balances or otherwise, and shall retain and apply to the payment in respect of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount Loans in excess of its ratable portion share of the payments received by on all of such Obligations then owed to the Lenders with respect to and the Obligations owed toSwingline Lender hereunder, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, then such Lender will make such disposition and arrangements with or the Swingline Lender shall purchase for cash at face value, but without recourse, ratably from each of the other Lenders with respect to such excess, either amount of the Loans held by way of distribution, pro tanto assignment of claims, subrogation each such other Lender or otherwise Swingline Lender as shall result in each be necessary to cause such Lender receiving in respect of the Obligations and Reimbursement Obligations owed or Swingline Lender to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of share such excess payment ratably with all the other Lenders and the Swingline Lender; provided, however, that if any such purchase is made by any Lender or Swingline Lender, and if such excess payment or part thereof is thereafter recovered from such purchasing Lender or Swingline Lender, such disposition and arrangements the related purchases from the other Lenders or Swingline Lender shall be rescinded ratably and the amount purchase price restored as to the extent portion of such recoveryexcess payment so recovered, but without interest; provided further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender with notice to the Borrower against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement the Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness indebtedness and to the Indebtedness evidenced by this Credit Agreement and Obligations owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, constituting the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS; provided, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITSthat in the event that any Defaulting Lender shall exercise any such right of setoff, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY(x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of §4.16 and, VOLUNTARILY AND IRREVOCABLY WAIVED. pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by this the Credit Agreement and or constituting Reimbursement Obligations owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held Loans made by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Loans made by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Bank a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderBank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Bank or any Lender Affiliate entity under the control of FleetBoston Financial Corporation and their its successors and assigns assigns, or in transit to any of themthem (collectively, the "Deposits"). Regardless In addition to the Bank's common law setoff rights and not in limitation thereof, at any time, without demand or notice, the Bank may set off the same or any part thereof and apply the same to any liability or obligation of the Borrower even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSLOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each Such right of debit may be exercised by the Bank against the Borrower or against any bankruptcy trustee, debtor-in-possession, assignee for the benefit of creditors, receiver, or execution, judgment, or attachment creditor of the Lenders agrees with each Borrower, or against anyone else claiming through or against the Borrower. Furthermore, in the event any attachment, trustee process, garnishment, or other Lender that levy or lien (acollectively a "Garnishment") if an amount issues against any Deposits (the "Liened Funds"), then the Bank shall have the unconditional right, without prior notice to be set off is the Borrower, to be applied debit any such Liened Funds immediately prior to Indebtedness giving effect to such Garnishment and apply the same to any indebtedness of the Borrower to such Lenderthe Bank under the Loan Documents, other than Indebtedness owed to such Lender evidenced by this Credit Agreement whether or not the same has matured. In addition, without limiting any of the foregoing rights, during the existence of an Event of Default (or any Notes held by such Lender event which with the passage of time, giving of notice, or constituting Reimbursement Obligations owed to such Lenderboth, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise would constitute an Event of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit AgreementDefault), the Notes (if any) held byBank shall have the right, without notice, to "freeze" or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law segregate any or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to Deposits such that the Obligations owed toBorrower may not access, the Notes (if any) held bycontrol, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestdraw upon them.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender and Interest Rate Hedge Counterparty a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderObligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or Agent, such Lender (or any Lender Affiliate Affiliate) and such Interest Rate Hedge Counterparty and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders such Secured Party to the Borrower and any securities or other property of the Borrower in the possession of such Lender Secured Party may be applied to or set off by such Lender against the payment of Obligations, subject to Section 4.4; provided that in the event that any Defaulting Lender will exercise any such right of setoff, (a) all amounts so set off will be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 15.13 and, pending such payment, will be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the other Lenders, and (b) the Defaulting Lender will provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower owing to such LenderDefaulting Lender as to which it exercised such right of setoff. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER SECURED PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower Each of the Borrowers hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the either Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, contingent then due or to become due, now existing or hereafter arising, of the either Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE EITHER BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the either Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender by proceedings against the either Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations or Obligations under Hedging Agreements owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it or Obligations and under Hedging Agreements or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Each Borrower hereby grants to the Administrative Agent and ------ each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and propertyproperty (other than funds or other property held in trust or as collateral for an obligation of the Borrowers or their Subsidiaries to a third party pursuant to a written agreement whereby the Administrative Agent or any Lender has acknowledged and consented to such arrangement), now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the any Borrower and any securities or other property of the any Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the any Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of --- ----- claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered -------- from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Us Xpress Enterprises Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the a Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by 88 -81- such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against any of the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and Agent, each of the Lenders and each Lender Affiliate, a continuing lien, security interest and right of setoff as security for all of its liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders or any Lender Affiliate to the Borrower and any securities or other property of the Borrower in the possession of such Lender or any Lender Affiliate may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORRROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (Barnes Group Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the such Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the such Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower Borrowers and any Guarantor hereby grants grant to the Administrative Agent and each of the Lenders Bank a continuing lien, ------ security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderBank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Bank or any Lender Affiliate entity under the control of FleetBoston Financial Corporation and their its successors and assigns assigns, or in transit to any of themthem (collectively, the "Deposits"). Regardless In addition to the Bank's common law setoff rights and not in limitation thereof, at any time after the occurrence and during the continuance of an Event of Default, without demand or notice, the Bank may set off the same or any part thereof and apply the same to any liability or obligation of the Borrowers and any Guarantor even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER THE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSLOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each Such right of debit may be exercised by the Bank against the Borrowers (and all Guarantors) or against any bankruptcy trustee, debtor-in-possession, assignee for the benefit of creditors, receiver, or execution, judgment, or attachment creditor of the Lenders agrees with each Borrowers (and all Guarantors), or against anyone else claiming through or against the Borrowers (and all Guarantors). Furthermore, in the event any attachment, trustee process, garnishment, or other Lender that levy or lien (acollectively a "Garnishment") if an amount issues against any Deposits (the "Liened Funds"), then the Bank shall have the unconditional right, without prior notice to be set off is the Borrowers (and all Guarantors), to be applied debit any such Liened Funds immediately prior to Indebtedness giving effect to such Garnishment and apply the same to any indebtedness of the Borrower Borrowers (and all Guarantors) to such Lenderthe Bank under the Loan Documents, other than Indebtedness owed to such Lender evidenced by this Credit Agreement whether or not the same has matured. In addition, without limiting any of the foregoing rights, during the existence of an Event of Default (or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit AgreementDefault), the Notes (if any) held byBank shall have the right, without notice, to "freeze" or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law segregate any or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to Deposits such that the Obligations owed toBorrowers (and all Guarantors) may not access, the Notes (if any) held bycontrol, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestdraw upon them.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Baltek Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders Lender or the Agent to the Borrower and Borrowers (but specifically excluding any securities or other property of the Borrower in Excluded Proceeds which may come into the possession of such any Lender or the Agent) may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or or, as the case may be, constituting Reimbursement Obligations owed to to, such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Lender or, as the case may be, constituting Reimbursement ObligationsObligations owed to such Lender, and (b) if such Lender shall receive from either of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or or, as the case may be, constituting Reimbursement Obligations owed to, such Lender Lender, by proceedings against the Borrower Borrowers at law or in equity in accordance with the terms of this Credit Agreement, or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held byby or, or as the case may be, Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed toNotes held by or, as the Notes (if any) held bycase may be, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or, as the case may be, Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any during the continuance of the Obligations are due and payable and have not been paidan Event of Default, (i) any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower Company and any securities or other property of the Borrower Company in the possession of such Lender Bank may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Company to such LenderBank and (ii) any deposits or other sums credited by or due from any of the Banks to Hasbro SA and any securities or other property of Hasbro SA in the possession of such Bank may be applied to or set off by such Bank against the payment of the Hasbro SA Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of Hasbro SA to such Bank. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER COMPANY OR HASBRO SA, AS THE CASE MAY BE, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees Banks agree with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Company or Hasbro SA, as the case may be, to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the BorrowerCompany or Hasbro SA, as the case may be, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower Company and/or Hasbro SA at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Each Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lienLien, security interest and right of setoff as security for all of its liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralCollateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lenderoverdue Obligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES SECURED THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE EITHER BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (aA) if an amount to be set off is to be applied to Indebtedness of the any Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Lender, or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender, or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bB) if such Lender shall receive from the such Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held byby such Lender, or constituting Reimbursement Obligations owed to, to such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held Loans made by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held Loans made by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Loans made by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Il Fornaio America Corp)
Setoff. The Borrower hereby grants Each Alternate Currency Lender agrees that if it shall, though the exercise of a right of banker's lien, setoff or counterclaim, a secured claim under Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of, such secured claim, received by such Alternate Currency Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by similar means, obtain payment (voluntary or involuntary) of any Alternate Currency Loan or Loans as a result of which the unpaid principal portion of the Alternate Currency Loans of such Alternate Currency Lender shall be proportionately less than the unpaid principal portion of the Alternate Currency Loans of any other Alternate Currency Lender at face value, and shall promptly pay to such other Alternate Currency Lender the purchase price for, a participation in the Alternate Currency Loans of such other Alternate Currency Lender, so that the aggregate unpaid principal amount of the Alternate Currency Loans and participations in the Alternate Currency Loans held by each Alternate Currency Lender shall be in the same proportion to the Administrative Agent and each aggregate unpaid principal amount of all Alternate Currency Loans then outstanding as the Lenders a continuing principal amount of its Alternate Currency Loans prior to such exercise of banker's lien, security interest and right of setoff as security for all liabilities and obligations or counterclaim or other event was to the Administrative Agent and each Lenderprincipal amount of all Alternate Currency Loans outstanding prior to such exercise of banker's lien, whether now existing setoff or hereafter arisingcounterclaim or other event; provided, upon and against all depositshowever, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralthat, if any of the Obligations are due such purchase or purchases or adjustments shall be made pursuant to this Section 4.05 and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to giving rise thereto shall thereafter be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lenderrecovered, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes purchase or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, purchases or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements adjustments shall be rescinded and the amount restored to the extent of such recovery, but recovery and the purchase price or prices or adjustment restored without interest. Each Borrower party to this Addendum expressly consents to the foregoing arrangements and agrees that any Alternate Currency Lender holding a participation in an Alternate Currency Loan deemed to have been so purchased may exercise any and all rights of banker's lien, setoff or counterclaim with respect to any and all moneys owing by such Borrowing Subsidiary to such Alternate Currency Lender by reason thereof as fully as if such Alternate Currency Lender had made an Alternate Currency Loan directly to such Borrower in the amount of such participation.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Readers Digest Association Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and ------ each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or --- ----- otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Loan Agreement; provided that if all or any part of such excess payment is thereafter recovered -------- from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. Each party hereto hereby agrees that, prior to the date that is one year and one day after the later of (i) the payment in full of all outstanding Obligations owed to any Conduit Lender and (ii) the Maturity Date, it will not institute against, or join any other Person in instituting against such Conduit Lender, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States of America or any state thereof.
Appears in 1 contract
Sources: Loan Agreement (Finova Group Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS; provided, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITSthat in the event that any Defaulting Lender shall exercise any such right of setoff, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY(x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of §4.16 and, VOLUNTARILY AND IRREVOCABLY WAIVED. pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by this the Credit Agreement and or constituting Reimbursement Obligations owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held Loans made by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Loans made by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.. 47438543.7
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender without further notice to the Borrower against the payment of Obligations and any and all other liabilities, whether direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ; provided however that such Lender shall advise the Borrower and the Administrative Agent promptly after making any set off.. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, constituting the Notes (if any) held by, or constituting Reimbursement Obligations owed to, to such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply such amount to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, to all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower Borrowers and Guarantors hereby grants grant to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the any Borrower or any Guarantor and any securities or other property of the any Borrower or any Guarantor in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the any Borrower or any Guarantor to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE ANY BORROWER OR ANY GUARANTOR ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the any Borrower or Guarantor to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the Borrowerany Borrower or any Guarantor, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the any Borrower or any Guarantor at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Loan Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest; provided further that the provisions of this Section shall not be construed to apply to (w) any payment made by or on behalf of any Borrower pursuant to and in accordance with the express terms of this Loan Agreement, or (x) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to any Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, Lender upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Lender, or any Lender Affiliate and their successors and assigns entity under the control of Lender, or its parent entity(ies), or in transit to any of them. Regardless At any time, without demand or notice, Lender may set off the same or any part thereof and apply the same to the Obligations of Borrower, even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderAmerican Gaming - Loan and Security Agreement – EXECUTION VERSION
15. CHOICE OF LAW, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such LenderVENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement ObligationsTHEIR CONSTRUCTION, and (b) if such Lender shall receive from the BorrowerINTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, whether by voluntary paymentGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, exercise of the right of setoffTHE INTERNAL LAWS OF THE STATE OF NEW JERSEY, counterclaimWITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF ▇▇▇▇▇▇, cross actionSTATE OF NEW JERSEY, enforcement of the claim evidenced by this Credit AgreementTHE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY, the Notes (if any) held byOR AT THE SOLE OPTION OF LENDER, or constituting Reimbursement Obligations owed toIN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER AND LENDER EACH WAIVES, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcyTO THE EXTENT PERMITTED UNDER APPLICABLE LAW, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestTHE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF BORROWER AND LENDER AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may may, after giving prior written notice thereof to the Borrower, be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become dueand owing, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Friendly Ice Cream Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders or any of the Subsidiaries of the holding company owning such Lender to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender or such Subsidiary of the holding company owning such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS; provided, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITSthat in the event that any Defaulting Lender shall exercise any such right of setoff, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY(x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of §4.16 and, VOLUNTARILY AND IRREVOCABLY WAIVEDpending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amount shall be applied to documentary letters of credit) and to the Indebtedness evidenced by this the Credit Agreement and or constituting Reimbursement Obligations owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held Loans made by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Loans made by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the any Borrower and any securities or other property of the such Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower to such LenderLender (it being understood and agreed that, notwithstanding anything in this Credit Agreement or any of the other Loan Documents to the contrary, deposits, sums, securities or other property of any Foreign Subsidiary (including any Foreign Borrower) will not serve at any time, directly or indirectly, to collateralize or otherwise offset the Obligations of Hexcel or any Domestic Subsidiary, and, in addition, the deposits, sums, securities or other property of a Foreign Subsidiary will only serve to collateralize or offset the Obligations of another Foreign Borrower if such Foreign Subsidiary is owned by such Foreign Borrower). ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the any Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the any Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Revolving Credit Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest. If, for the purpose of exercising the right of setoff pursuant to this Section 15.1, it becomes necessary to convert any amount in Dollars or in any other currency into any other currency, such conversion shall be made as provided in the first sentence of Section 12.5.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any during the ------ continuance of the Obligations are due and payable and have not been paidan Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender the Lenders may be applied to or set off by such Lender against the payment of the Obligations hereunder and under any Note and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDthe Lenders and the Agent. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender indebtedness evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto --------- assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that -------- if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (United States Filter Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidCollateral, any deposits or other sums credited by or due from any of the Lenders to any member of the Borrower Consolidated Group and any securities or other property of any member of the Borrower Consolidated Group in the possession of such Lender may may, upon the consent of the Agent and the Majority Lenders, be applied to or set off by such Lender setoff against the payment of Obligations of the Consolidated Group hereunder and under the other Loan Documents and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Consolidated Group to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDLender at any time after the occurrence and during the continuance of any Event of Default. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off setoff is to be applied to Indebtedness of the Borrower or other Property Owners to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement Obligations, Lender and (b) if such Lender shall receive from the BorrowerBorrower or other Property Owners, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross cross-action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower or other Property Owners at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, proceedings or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto tanto, assignment of claims, subrogation subrogation, or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, Notes held by it its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Senior Secured Facilities Credit Agreement (Wci Communities Inc)
Setoff. The Borrower Each of the Loan Parties hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower Loan Parties and any securities or other property of the Borrower any Loan Party in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, contingent then due or to become due, now existing or hereafter arising, of the Borrower any Loan Party to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ANY LOAN PARTY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Loan Parties to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrowerany Loan Party, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender by proceedings against the Borrower any Loan Party at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations or Obligations under Hedging Agreements owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it or Obligations and under Hedging Agreements or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender, a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lendersuch Lender hereunder, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to it. At any time, without demand or notice (any such notice being expressly waived by Borrower), any Lender may setoff the same or any part thereof and apply the same to any liability or obligation of them. Regardless Borrower hereunder even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDWAIVED BY THE BORROWER. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition disposition-and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, Notes held by it its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest, unless the Lender from whom such payment is recovered is required to pay interest thereon, in which case each Lender returning funds to such Lender shall pay its allocable share of such interest based on the period of time that it was in possession of the funds being returned.
Appears in 1 contract
Sources: Credit Agreement (Liberty Property Limited Partnership)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such any Lender may be applied to or set off by such Lender Lenders against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender Lenders that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderLenders, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLenders, and (b) if such Lender Lenders shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Lenders by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Lenders any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender Lenders will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Intercreditor Agreement (Prentice Capital Management, LP)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender without further notice to the Borrower against the payment of Obligations and any and all other liabilities, whether direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ; provided however that such Lender shall advise the Borrower and the Administrative Agent promptly after making any set off.. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, constituting the Notes (if any) held by, or constituting Reimbursement Obligations owed to, to such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply such amount to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, to all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralCollateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Borrower's Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, by such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, --------- subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Notes held by it, its proportionate payment as contemplated by this Credit Loan Agreement; provided that if all or any part of such excess payment is thereafter -------- recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of collateral for the Obligations are due and payable and have not been paidObligations, any deposits or other sums credited by or due from any of the Lenders Institutions to the Borrower and any securities or other property of the Borrower in the possession of such Lender Consignee may be applied to or set off by such Lender Institution against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower any Consignee to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSInstitution at any time without notice to any Consignee, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITSor compliance with any other procedure imposed by statute other otherwise, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDall of which are hereby expressly waived by each of the Consignees. Each of the Lenders Institutions agrees with each other Lender Institution that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower any Consignee to such LenderInstitution, other than Indebtedness constituting obligations in respect of Consigned Precious Metal owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such LenderInstitution, such amount shall be applied ratably to such other Indebtedness and constituting obligations in respect of Consigned Precious Metal owed to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement ObligationsInstitution, and (b) if such Lender Institution shall receive from the Borrowerany Consignee, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations obligations in respect of Consigned Precious Metal owed to, to such Lender Institution by proceedings against the Borrower any Consignee at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations obligations in respect of Consigned Precious Metal owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, to such Lender Institution any amount in excess of its ratable portion of the payments received by all of the Lenders Institutions with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations obligations in respect of Consigned Precious Metal owed to, all of the LendersInstitutions, such Lender Institution will make such disposition and arrangements with the other Lenders Institutions with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Institution receiving in respect of the Obligations and Reimbursement Obligations obligations in respect of Consigned Precious Metal owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderInstitution, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Gold Consignment Agreement (Finlay Enterprises Inc /De)
Setoff. The Borrower Each Guarantor hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all depositsits deposits (excluding payroll, benefits and other trust accounts), credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Guaranteed Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower such Guarantor and any securities or other property of the Borrower such Guarantor in the possession of such Lender may may, without prior notice to such Guarantor, be applied to or set off by such Lender against the payment of the Guaranteed Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower such Guarantor to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE GUARANTEED OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER GUARANTOR ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each The rights of the Lenders agrees with each and the Agent hereunder are in addition to other Lender that rights and remedies (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lenderincluding, without limitation, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right rights of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of which the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestAgent may have.
Appears in 1 contract
Sources: Continuing Guaranty Agreement (Lionbridge Technologies Inc /De/)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Banks a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderBank, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Bank or any Lender Affiliate affiliate of any Bank and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations obligations owing from the Borrower to the Agent or any Bank hereunder are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of such Lender Bank may be applied to or set off by such Lender Bank against the payment of Obligations such obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderBank. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE SUCH OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees Banks agree with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Credit Agreement (Cabot Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralCollateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, Lender other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Term Loan Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Term Loan Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Term Loan Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Term Loan Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Term Loan Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to Term Loan Notes held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest, provided, further, that the foregoing shall not apply to any amount received by any Lender or its Affiliates in connection with, or related to, transactions, including financial accommodations and leases, with any of the Borrowers which are not related to the transactions contemplated by this Credit Agreement or the Prepetition Notes.
Appears in 1 contract
Sources: Credit Agreement (WorldSpace, Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed toto or participations in Swing Line Loans held by, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans held by, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, or participations in Swing Line Loans held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Setoff. The Borrower hereby grants In the event that the Purchaser Indemnitees have a right to be indemnified for any Losses actually incurred arising out of or related to the Administrative Agent Indemnified Tax Liabilities, the Purchaser Indemnitees may deduct the amount of such Losses from the Contingent Consideration Installment Amounts upon written notice to Seller; provided that the maximum amount that may be deducted with respect to any Losses arising out of or related to the Indemnified State Tax Liabilities and each the Indemnified Consultant Tax Liabilities may not exceed $680,000 in the aggregate. In addition, to the extent that the Tax Indemnity Claim Condition is satisfied with respect to any Indemnified Tax Liability but no Losses relating to such Indemnified Tax Liability have yet actually been incurred and the Purchaser makes a claim in respect of such Losses hereunder prior to the expiration of the Lenders a continuing lienapplicable period set forth in Section 10.3(a), security interest and right Purchaser may withhold payment from the Contingent Consideration Installment Amounts in an amount not in excess of the amount of the Losses reasonably expected to result from such Indemnified Tax Liability then asserted by the applicable Taxing Authority to be, or potentially be, due pursuant to such Tax Audit until such Tax Audit is ultimately resolved in accordance with Section 6.10; provided that that the maximum amount that may be setoff as security for all liabilities and obligations with respect to any Losses arising out of or related to the Administrative Agent Indemnified State Tax Liabilities and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter the Indemnified Consultant Tax Liabilities may not exceed $680,000 in the possession, custody, safekeeping or control of aggregate. Promptly following the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy ultimate resolution of any collateralsuch Tax Audit, Purchaser shall pay to Seller an amount equal to the excess if any of (i) the Obligations are due and payable and have not been paid, amount so withheld over (ii) the portion of such amount required to satisfy any deposits or other sums credited by or due from any of the Lenders amount finally determined to be owed to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied applicable Purchaser Indemnitee pursuant to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (aSection 10.2(a)(ii) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to any Losses resulting from the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, Indemnified Tax Liabilities in connection with such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestTax Audit.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (AlTi Global, Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any during the continuance of the Obligations are due and payable and have not been paidan Event of Default, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower Company and any securities or other property of the Borrower Company in the possession of such Lender Bank may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Company to such LenderBank. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER COMPANY ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees Banks agree with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Company to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the BorrowerCompany, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower Company at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any during the continuance of the Obligations are due and payable and have not been paidan Event of Default, (i) any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower Company and any securities or other property of the Borrower Company in the possession of such Lender Bank may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Company to such LenderBank and (ii) any deposits or other sums credited by or due from any of the Banks to Hasbro SA and any securities or other property of Hasbro SA in the possession of such Bank may be applied to or set off by such Bank against the payment of the Hasbro SA Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of Hasbro SA to such Bank. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO Page 99 EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER COMPANY OR HASBRO SA, AS THE CASE MAY BE, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees Banks agree with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Company or Hasbro SA, as the case may be, to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the BorrowerCompany or Hasbro SA, as the case may be, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower Company and/or Hasbro SA at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower Each of the Borrowers hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the any Borrower and any securities or other property of the any Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the any Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the any Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or such Reimbursement Obligations, and (b) if held by such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.and
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Furrs Restaurant Group Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any during the ------ continuance of the Obligations are due and payable and have not been paidan Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may the Lenders may, with the prior written consent of the Managing Agent, be applied to or set off by such Lender against the payment of the Obligations hereunder and under any Note and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDthe Lenders and the Agents. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (United States Filter Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Banks a continuing lien, lien and security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, Obligations upon and against all deposits, credits, collateral and property, property now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Banks or any Lender Affiliate and of their successors and assigns Affiliates or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of such Lender Bank or in transit to it may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderBank. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER THE BANKS TO EXERCISE ITS THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, OBLIGATIONS PRIOR TO EXERCISING ITS THE RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders Banks agrees with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Weider Nutrition International Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of collateral for the Obligations are due and payable and have not been paidObligations, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of such Lender Guarantors may be applied to or set off by such Lender following an Event of Default against the payment of Obligations any principal, interest and any and all other liabilities, directamounts due from the Borrower or either the Guarantors to the Banks at any time without notice to the Borrower or the Guarantors, or indirectcompliance with any other procedure imposed by statute or otherwise, absolute or contingent, due or to become due, now existing or hereafter arising, all of which are hereby expressly waived by the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDand the Guarantors. Each of the Lenders Banks agrees with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, --- ----- subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of -------- such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the such Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the such Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
1. THE ADMINISTRATIVE AGENT.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, Lender upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Lender, or any Lender Affiliate and their successors and assigns entity under the control of Lender, or its parent entity(ies), or in transit to any of them. Regardless At any time , without demand or notice, Lender may set off the same or any part thereof and apply the same to the Obligations of Borrower, even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
15. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF M▇▇▇▇▇, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY, OR AT THE SOLE OPTION OF Lender, other than Indebtedness owed to such IN ANY OTHER COURT IN WHICH Lender evidenced by this Credit SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER AND LENDER EACH WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF BORROWER AND Lender AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15. Optical Cable – Loan and Security Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.– EXECUTION VERSION
Appears in 1 contract
Setoff. The Borrower Borrowers hereby grants grant to the Administrative Agent Agent, the Issuing Bank and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent Agent, the Issuing Bank and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent Agent, the Issuing Bank or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders or the Issuing Bank to the any Borrower and any securities or other property of the any Borrower in the possession of such Lender or Issuing Bank may be applied to or set off by such Lender or the Issuing Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such LenderLender or Issuing Bank. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER OR ISSUING BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement the Loans or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement Loans and Reimbursement Obligations owed to such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, Loans or constituting Reimbursement Obligations owed to, to such Lender by proceedings against the any Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, Loans or Reimbursement Obligations owed to, to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, Loans and Reimbursement Obligations owed to, to all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving receiving, in respect of the Obligations Loans and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Seneca Foods Corp /Ny/)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed toto or participations in Swing Line Loans held by, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans held by, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, or participations in Swing Line Loans held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the a Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against any of the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Each Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the any Borrower and any securities or other property of the any Borrower in the possession of such Lender may be applied to or set off by such Lender the Administrative Agent against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the Administrative Agent and the other Lenders with respect to such excess, either by way excess in accordance with the provisions of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestSection 4.6.
Appears in 1 contract
Setoff. The Borrower Borrowers hereby grants grant to the Administrative Agent, the Collateral Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent, the Collateral Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent, the Collateral Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of any of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender without further notice to the Borrower against the payment of Obligations and any and all other liabilities, whether direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender; provided however that such Lender shall advise the Borrower and the Administrative Agent promptly after making any set off; provided that failure to give such notice shall not affect the validity of such setoff, and provided, further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of §2.13 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, constituting the Notes (if any) held by, or constituting Reimbursement Obligations owed to, to such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply such amount to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, to all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders or the Agent to the Borrower and any securities or other property of the Borrower in the possession of such Lender Borrowers may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or or, as the case may be, constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes or held by such Lender or, as the case may be, constituting Reimbursement ObligationsObligations owed to such Lender, and (b) if such Lender shall receive from either of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or or, as the case may be, constituting Reimbursement Obligations owed to, such Lender Lender, by proceedings against the Borrower Borrowers at law or in equity in accordance with the terms of this Credit Agreement, or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or or, as the case may be, Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed toNotes held by or, as the Notes (if any) held bycase may be, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with 91 -85- the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or, as the case may be, Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be promptly rescinded and the amount promptly restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower Each Loan Party hereby grants to the Administrative Agent and each of the Lenders Lender a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, Lender upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Lender, or any Lender Affiliate and their successors and assigns entity under the control of Lender, or its parent entity(ies), or in transit to any of them. Regardless At any time during the existence of an Event of Default, without demand or notice, Lender may set off the same or any part thereof and apply the same to the Obligations of Borrowers, even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
15. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF ▇▇▇▇▇▇, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY OR AT THE SOLE OPTION OF Lender, IN ANY OTHER COURT IN WHICH Lender SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH LOAN PARTY AND Lender EACH WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF LOAN PARTIES AND Lender AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15. Each Borrower, each Guarantor and Lender have executed this Agreement and delivered this Agreement to Lender at Lender's place of business in Princeton, New Jersey as of the Lenders agrees with date first above written. SPAR MARKETING FORCE, INC., a Nevada corporation, as US Borrower By:______________________________________ Name: Title: SPAR CANADA COMPANY, an unlimited company organized under the laws of Nova Scotia, as Canadian Borrower By:______________________________________ Name: Title: SPAR GROUP, INC., a Delaware corporation, as a Guarantor By:______________________________________ Name: Title: SPAR ACQUISITION, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: SPAR CANADA, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: SPAR TRADEMARKS, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: SPAR ASSEMBLY & INSTALLATION, INC., a Nevada corporation, as a Guarantor By:______________________________________ Name: Title: NORTH MILL CAPITAL LLC, a Delaware limited liability company, as Lender By:______________________________________ Name: Title: Bank Name, Address, and Wire Transfer Instructions: Schedule 5.13 ▇▇▇▇▇▇▇▇ Settlement means [___]. ▇▇▇▇▇ Settlement means [___]. ▇▇▇▇▇▇▇ Advanced Settlement means [___]. Exhibit 6.4 Pursuant to Section 6.4 of that certain Loan and Security Agreement, dated April 10, 2019, by and among SPAR MARKETING FORCE, INC., a Nevada corporation, SPAR CANADA COMPANY, an unlimited company organized under the laws of Nova Scotia (collectively, "Borrowers"), the Guarantors party thereto and NORTH MILL CAPITAL LLC ("Lender") (as amended, modified, supplemented, substituted, extended or renewed from time to time, the "Loan Agreement"), each other of the undersigned Borrowers hereby certifies to Lender that (a) if an amount as follows:
1. All reports, statements or computer prepared information of any kind or nature delivered or caused to be set off is delivered to be applied Lender in connection with the Loan Agreement fairly represent each Borrower's financial condition.
2. There exists no condition or event which constitutes an Event of Default (as defined in the Loan Agreement) including, without limitation, any cross-default with other lenders. ______________ Yes (skip to Indebtedness #3) Or ______________ No (then answer below) The following Events of Default (as defined in the Loan Agreement) exist:
(2) and the following sets forth in detail what action Borrowers propose to take with respect thereto:
3. The financial statements provided by Borrowers to Lender are: __ Audited (SGRP annual only) __ Reviewed (SGRP quarterly only) __ Compiled Required under Section 6.4 (Financial Statements, Reports, Certificates) - _____________ In compliance? ___ Yes ___ No
4. The following are calculations of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to following covenants set forth in the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Loan Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.:
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender Bank may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of any of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDBank. Each of the Lenders Banks agrees with each other Lender Bank that (a) if an amount to be set off is to be applied to Indebtedness of any of the Borrower Borrowers to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations or obligations under the German Guaranty owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations or obligations under the German Guaranty owed to such Reimbursement ObligationsBank, and (b) if such Lender Bank shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations or obligations under the German Guaranty owed to, such Lender Bank by proceedings against any of the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations or obligations under the German Guaranty owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations or obligations under the German Guaranty owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations or obligations under the German Guaranty owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Loan Agreement (Metallurg Inc)
Setoff. The Borrower Each of the Borrowers hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the any Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, contingent then due or to become due, now existing or hereafter arising, of the any Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the any Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender by proceedings against the any Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Obligations under Hedging Agreements or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations or Obligations under Hedging Agreements owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Notes held by it or Obligations and under Hedging Agreements or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, Lender upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender Lender, or any Lender Affiliate and their successors and assigns entity under the control of Lender, or its parent entity(ies), or in transit to any of them. Regardless At any time, without demand or notice, Lender may set off the same or any part thereof and apply the same to the Obligations of Borrower, even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderObligations. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT RIGHTS OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
15. Each CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. THE VALIDITY OF THE LOAN DOCUMENTS, THEIR CONSTRUCTION, INTERPRETATION AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS LOCATED IN THE COUNTY OF ▇▇▇▇▇▇, STATE OF NEW JERSEY, THE FEDERAL COURTS WHOSE VENUE INCLUDES THE STATE OF NEW JERSEY, OR AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER AND LENDER EACH WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING UNDER THE LOAN DOCUMENTS OR RELATING TO THE DEALINGS OF BORROWER AND LENDER AND ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 15. Ameri100 - Loan and Security Agreement – EXECUTION VERSION - 25 - Borrower and Lender have executed this Agreement and delivered this Agreement to Lender at Lender's place of business in Princeton, New Jersey as of the Lenders agrees with each other Lender that (a) if date first above written. AMERI100 ARIZONA LLC, an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderArizona limited liability company By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Chief Executive Officer AMERI100 CALIFORNIA INC., other than Indebtedness owed to such Lender evidenced by this Credit a Delaware corporation By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Chief Executive Officer AMERI100 GEORGIA INC., a Georgia corporation By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Chief Executive Officer AMERI AND PARTNERS INC, a Delaware corporation By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Chief Executive Officer NORTH MILL CAPITAL LLC, a Delaware limited liability company By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Executive Vice President Ameri100 - Loan and Security Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender– EXECUTION VERSION - 26 - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, such amount shall be applied ratably to such other Indebtedness ▇▇▇ ▇▇▇▇▇ Ameri100 - Loan and to the Indebtedness evidenced by this Credit Security Agreement – EXECUTION VERSION - 27 - Ameri100 - Loan and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.Security Agreement – EXECUTION VERSION - 28 -
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Tranche A Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Tranche A Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Tranche A Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Tranche A Note or Tranche A Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Tranche A Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Tranche A Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or (other property of than those arising under the Borrower in the possession of such Lender Consolidated Credit Agreement) may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Term Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Term Notes or held by such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Term Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Term Note or Term Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Term Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, Term Notes held by its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness (except that no amounts shall be applied to documentary letters of credit) and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to any of the Borrower Borrowers and any securities or other property of any of the Borrower Borrowers in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDObligations. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be (or is ever) applied to Indebtedness of any of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender, or Loan Accounts maintained by any Lender or the Fronting Bank or constituting Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to such Lender, such amount shall be applied ratably to such other Indebtedness and first to the Indebtedness evidenced by this Credit Agreement and all such Notes or Loan Accounts held by such Lender or constituting Reimbursement ObligationsObligations or Foreign Reimbursement Obligations owed to such Lender, and (b) if such Lender shall receive from any of the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or Loan Accounts maintained by or constituting Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to, such Lender by proceedings against the such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Loan Accounts maintained by or Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to, such Lender any amount in excess of its applicable ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, or Loan Accounts maintained by and Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as --- ----- shall result in each Lender receiving in respect of the Obligations and Notes held by it or Loan Accounts maintained by it or Reimbursement Obligations or Foreign Reimbursement Obligations, as the case may be, owed to it, its applicable proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of -------- such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.. THE ADMINISTRATIVE AGENT, THE FOREIGN AGENT AND THE SYNDICATION AGENT. ---------------------------------------------------------------------
Appears in 1 contract
Sources: Multicurrency Revolving Credit and Term Loan Agreement (Samsonite Holdings Inc)
Setoff. The Each Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any Event of the Obligations are due and payable and Default shall have not been paidoccurred, any deposits or other sums credited by or due from any of the Lenders or Lender Affiliates to the any Borrower and any securities or other property of the such Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender or participations in Swing Line Loans held by such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender or participations in Swing Line Loans held by such Lender, and (b) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed toto or participations in Swing Line Loans held by, such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Revolving Credit Note or Revolving Credit Notes (if any) held by, or Reimbursement Obligations owed to, or participations in Swing Line Loans held by, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Revolving Credit Notes (if any) held by, and Reimbursement Obligations owed to, or participations in Swing Line Loans held by, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto protanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Revolving Credit Notes held by it or Reimbursement Obligations owed to it, or participations in Swing Line Loans held by it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any during the continuance of the Obligations are due and payable and have not been paidan Event of Default, any deposits or other sums credited by or due from any of the Lenders to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender may the Lenders may, with the prior written consent of the Managing Agent, be applied to or set off by such Lender against the payment of the Obligations hereunder and under any Note and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDthe Lenders and the Agents. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower Borrowers to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the BorrowerBorrowers, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Multicurrency Credit Agreement (United States Filter Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders Banks to the Borrower and any securities or other property of the Borrower in the possession of such Lender Bank or any entity under the control of FleetBoston Corporation or any other Bank's corporate parent, or in transit to any of them, may be applied to or set off by such Lender Bank against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderBank. ANY AND ALL RIGHTS TO REQUIRE THE ADMINISTRATIVE AGENT OR ANY LENDER BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSLOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders Banks agrees with each other Lender Bank that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such LenderBank, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender Bank or constituting Reimbursement Obligations owed to such LenderBank, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Bank or constituting Reimbursement Obligations owed to such Reimbursement ObligationsBank, and (bii) if such Lender Bank shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender Bank by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender Bank any amount in excess of its ratable portion of the payments received by all of the Lenders Banks with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the LendersBanks, such Lender Bank will make such disposition and arrangements with the other Lenders Banks with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender Bank receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such LenderBank, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bell Sports Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders Lender, a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each LenderLender Obligations, whether now existing or hereafter arising, upon and against all deposits, credits, collateral Collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such any Lender or any Lender Affiliate and their successors and assigns entity under the control of FleetBoston Financial Group, Inc., or in transit to any of them. Regardless At any time, without demand or notice, upon the occurrence of a Default and at any time during its continuance, Agent and each Lender may setoff the same or any part thereof and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderLoan. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER AGENT AND LENDERS TO EXERCISE ITS THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSLOAN, PRIOR TO EXERCISING ITS THEIR RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. The right of setoff contained herein shall be applicable to the Reserve Accounts. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the BorrowerBorrower or any Borrower Subsidiary, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross cross-action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, proceedings or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, by such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation subrogation, or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, Notes held by it its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations Obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateralCollateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender the Administrative Agent against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderLender hereunder. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE IS HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set apply all amounts collected from any such set-off is to be applied the Obligations before applying such amounts to any other Indebtedness of or other obligations owed by the Borrower and any of its Subsidiaries to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, by all of the Lenders, such Lender will make such disposition and arrangements with the Administrative Agent and the other Lenders with respect to such excess, either by way excess in accordance with the provisions of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interestSection 4.5.
Appears in 1 contract
Sources: Term Loan Agreement (TAL International Group, Inc.)
Setoff. The Borrower Borrowers hereby grants grant to the Administrative Agent Agents, the Issuing Lender and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent Agents, the Issuing Lender and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of such Agent, the Administrative Agent Issuing Lender or such Lender or any Lender Affiliate of their Affiliates and their respective successors and assigns or in transit to any of them. .Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or during the continuance of an Event of Default, any deposits or other sums credited by or due from any of Lender or the Lenders Administrative Agent to the Borrower Borrowers and any securities or other property of the Borrower Borrowers in the possession of such Lender or the Administrative Agent may be applied to or set off by such Lender against the payment of the Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower Borrowers to such Lenderthe Lenders. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the BorrowerBorrowers any amount in respect of the Obligations, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreementthe Loan Documents, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower Borrowers at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, to such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, to all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its such Lender’s proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if during the continuance of any Event of the Obligations are due and payable and have not been paidDefault, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (ai) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (bii) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto PRO TANTO assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided PROVIDED that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Sassco Fashions LTD /De/)
Setoff. The Borrower Borrowers hereby grants grant to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the such Borrower and any securities or other property of the such Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER BORROWERS ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the The Lenders agrees with each other agree among themselves that, if a Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by shall obtain payment on any Loan outstanding under this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to through the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the a right of setoffoffset, banker's lien or counterclaim, cross actionor from any other source (other than by way of a PRO RATA payment under this Agreement or a required payment under a Note), enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and it shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will promptly make such disposition and arrangements adjustments with the other Lenders as shall be equitable to the end that all the Lenders shall share the benefits of such payments PRO RATA in accordance with respect the aggregate unpaid amount of the Notes held by each Lender immediately prior to the payment obtained by such excessLender as aforesaid. The Lenders further agree among themselves that if any payment to a Lender obtained by such Lender through the exercise of a right of offset, either banker's lien or counterclaim, or from any other source (other than by way of distribution, pro tanto assignment of claims, subrogation or otherwise a PRO RATA payment) as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements aforesaid shall be rescinded and or must otherwise be restored, the amount restored Lenders who shall have shared the benefit of such payment shall return their share of that benefit to the extent of such recovery, but without interestLender whose payment shall have been rescinded or otherwise restored.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Iesi Tx Corp)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any deposits or other sums credited by or due time and from any of the Lenders time to time, to the Borrower fullest extent permitted by law, to set off and apply any securities and all deposits (general or special, time or demand, provisional or final) at any time held and other property indebtedness at any time owing by such Lender to or for the credit or the account of the Borrower against any and all of the Obligations of the Borrower now or hereafter existing under this Credit Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Credit Agreement and, with the approval of the Required Lenders, although such Obligations may be unmatured. The rights of each Lender under this Section 16.1 are in the possession addition to other rights and remedies (including other rights of setoff) which such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVEDhave. Each of the Lenders agrees agree with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any the Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and all such Notes held by such Lender or constituting Reimbursement Obligations owed to such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Revolving Credit Agreement (Lexmark International Inc /Ky/)
Setoff. The Borrower hereby grants to the Administrative Agent and each of the Lenders a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders to the any Borrower and any securities or other property of the such Parent or Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the such Parent or Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE PARENT OR ANY BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Parent or any Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this the Revolving Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this all such Revolving Credit Agreement and Notes held by such Notes or such Reimbursement ObligationsLender, and (b) if such Lender shall receive from the any Parent or Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this the Revolving Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, by such Lender by proceedings against the Parent or such Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.at
Appears in 1 contract
Setoff. The Borrower and any Guarantor hereby grants grant to the Administrative Agent and each of the Lenders Lender a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, and whether existing under this Loan Agreement, the Credit Note or otherwise, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns entity under the control of Fleet Financial Group, Inc., or in transit to any of them. Regardless At any time, without demand or notice, Lender may set off the same or any part thereof and apply the same to any liability or obligation of Borrower and any Guarantor even though unmatured and regardless of the adequacy of any collateral, if any of other collateral securing the Obligations are due and payable and have not been paid, any deposits or other sums credited by or due from any of the Lenders to the Borrower and any securities or other property of the Borrower in the possession of such Lender may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such LenderCredit Loan. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONSCREDIT LOAN, PRIOR TO EXERCISING ITS RIGHT OF TO SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders Lender agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of promptly notify the Borrower to after any such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness setoff and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreementapplication; provided that if all or any part the failure to give such notice shall not affect the validity of such excess payment is thereafter recovered from such Lendersetoff and application. The rights of Lender under this SECTION 2.05 are in addition to all other rights and remedies (including, such disposition and arrangements shall be rescinded and the amount restored to the extent without limitation, other rights of such recovery, but without interestsetoff) which Lender may have.
Appears in 1 contract
Sources: Loan Agreement (Network Six Inc)
Setoff. The Borrower hereby grants to the Administrative Agent and Agent, each of the Lenders and each Lender Affiliate, a continuing lien, security interest and right of setoff as security for all liabilities and obligations to the Administrative Agent and each Lender, whether now existing or hereafter arising, upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of the Administrative Agent or such Lender or any Lender Affiliate and their successors and assigns or in transit to any of them. Regardless of the adequacy of any collateral, if any of the Obligations are due and payable and have not been paidpaid or any Event of Default shall have occurred, any deposits or other sums credited by or due from any of the Lenders or any Lender Affiliate to the Borrower and any securities or other property of the Borrower in the possession of such Lender or any Lender Affiliate may be applied to or set off by such Lender against the payment of Obligations and any and all other liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, of the Borrower to such Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be set off is to be applied to Indebtedness of the Borrower to such Lender, other than Indebtedness owed to such Lender evidenced by this Credit Agreement or any Notes held by such Lender or constituting Reimbursement Obligations owed to such Lender, such amount shall be applied ratably to such other Indebtedness and to the Indebtedness evidenced by this Credit Agreement and such Notes or such Reimbursement Obligations, and (b) if such Lender shall receive from the Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of the claim evidenced by this Credit Agreement, the Notes (if any) held by, or constituting Reimbursement Obligations owed to, such Lender by proceedings against the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply to the payment of the Obligations owed to, the Note or Notes (if any) held by, or Reimbursement Obligations owed to, such Lender any amount in excess of its ratable portion of the payments received by all of the Lenders with respect to the Obligations owed to, the Notes (if any) held by, and Reimbursement Obligations owed to, all of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect of the Obligations and Notes held by it or Reimbursement Obligations owed to it, its proportionate payment as contemplated by this Credit Agreement; provided that if all or any part of such excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent of such recovery, but without interest.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)