Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro rata; provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 15 contracts
Sources: Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.), Credit and Guaranty Agreement (American Airlines, Inc.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving Extensions of Credit of any other Lender (other than with respect to any LC Exposure under clause (i) of the definition thereof)
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 4 contracts
Sources: Credit and Guaranty Agreement (Hawaiian Holdings Inc), Credit and Guaranty Agreement (Jetblue Airways Corp), Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the either Borrower or a Guarantorany other Loan Party, including, but not limited to, or pursuant to a secured claim under Section 506 of Title 11 of the Bankruptcy United States Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of its Loans any Loan, Floorplan Loan Payment or LC Exposure Disbursement as a result of which the unpaid principal portion of its Loans or Loans, Floorplan Loan Payments and participations in LC Exposure is Disbursements shall be proportionately less than the unpaid principal portion of the Loans or Loans, Floorplan Loan Payments and participations in LC Exposure Disbursements of any other Lender (a) Lender, it shall promptly purchase at par (and shall be deemed simultaneously to have thereupon purchased) purchased from such other Lender at face value, and shall promptly pay to such other Lender the purchase price for, a participation in the Loans or Loans, Floorplan Loan Exposure and LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans the Loans, Floorplan Loan Exposure and LC Exposure and its participation participations in Loans Loans, Floorplan Loan Exposure and LC Exposure of the other Lenders held by each Lender shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding Loans, Floorplan Loan Exposure and LC Exposure then outstanding as the principal amount of its Loans Loans, Floorplan Loan Exposure and LC Exposure prior to the obtaining such exercise of such payment banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans outstanding Loans, Floorplan Loan Exposure and LC Exposure outstanding prior to the obtaining such exercise of banker’s lien, setoff or counterclaim or other event; provided, however, that (i) if any such payment and (b) such other purchase or purchases or adjustments shall be made from time pursuant to time as this Section 2.18 and the payment giving rise thereto shall thereafter be equitable to ensure that the Lenders share such payment pro rata; provided that if any such non-pro-rata payment is thereafter recovered or otherwise set asiderecovered, such purchase of participations or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest and (without interest). The ii) the provisions of this Section 8.08 2.18 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or other Obligations owed participant. The Borrower expressly consent to itthe foregoing arrangements and agrees that any Lender holding a participation in a Loan, Floorplan Loan Payment or LC Disbursement 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 the Borrower to such Lender by reason thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation.
Appears in 4 contracts
Sources: Revolving Loan Credit Agreement (CDW Corp), Revolving Loan Credit Agreement (CDW Corp), Revolving Loan Credit Agreement (CDW Finance Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment then due or payable in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion then due or payable in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion then due or payable in respect of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other applicable Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other applicable Lender, so that the aggregate unpaid principal amount of each applicable Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other applicable Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans of the applicable Lenders then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans of the applicable Lenders outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the applicable Lenders share such payment pro rata; provided pro-rata in proportion to the amounts then due and payable to each of them, provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of , it being agreed and understood that nothing in this Section 8.08 shall operate (x) to allow a Lender to keep a payment in respect of portions not be construed then due or payable in respect of its Loans, (y) to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by entitle any Lender as consideration for the assignment or sale of a participation to participate in any sharing of payments in respect of portions not then due or payable in respect of its Loans or other Obligations owed (z) to itchange the order of payments set forth in Sections 2.13, 2.14 or 2.19(b). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under Letters of Credit may exercise any and all rights of banker’s lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of Section 7.01) or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender were the original obligee thereon, in the amount of such participation.
Appears in 3 contracts
Sources: Revolving Credit, Term Loan and Guaranty Agreement, Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp), Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 3 contracts
Sources: Revolving Credit and Guaranty Agreement (United Airlines, Inc.), Revolving Credit and Guaranty Agreement (United Airlines, Inc.), Credit and Guaranty Agreement (United Airlines, Inc.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular LenderLender or to the Lenders under a particular Revolving Facility, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a GuarantorBorrower, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Revolving Loans or LC Exposure under such Revolving Facility as a result of which the unpaid portion of its Revolving Loans or LC Exposure thereunder is proportionately less than the unpaid portion of the Revolving Loans or LC Exposure thereunder of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Revolving Loans or LC Exposure thereunder of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Revolving Loans and LC Exposure under such Revolving Facility and its participation in Revolving Loans and LC Exposure under such Revolving Facility of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Loans then outstanding and LC Exposure Exposure, in each case under such Revolving Facility, as the principal amount of its Revolving Loans and LC Exposure under such Revolving Facility prior to the obtaining of such payment was to the principal amount of all Revolving Loans outstanding and LC Exposure Exposure, in each case under such Revolving Facility, prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders under such Revolving Facility share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Revolving Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 3 contracts
Sources: Credit Agreement (Delta Air Lines, Inc.), Credit Agreement (Delta Air Lines, Inc.), Credit Agreement (Delta Air Lines Inc /De/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 3 contracts
Sources: First Lien Revolving Credit and Guaranty Agreement (Delta Air Lines Inc /De/), Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/), First Lien Revolving Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Sharing of Setoffs. Each Lender of the Lenders agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, any Credit Party (including, but not limited to, a secured claim under Section 506 of Title 11 of the Bankruptcy United States Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, ) or otherwise, obtain payment in respect of its Loans or LC Exposure Obligations (which term, for purposes of this Section 10.2 only, shall refer solely to those Obligations referred to in clause (a) of the definition of “Obligations”) as a result of which the unpaid portion of its Loans or LC Exposure Obligations is proportionately less than the unpaid portion of the Loans or LC Exposure Obligations of any of the other Lender Lenders (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender Lenders a participation in the Loans or LC Exposure Obligations of such other LenderLenders, so that the aggregate unpaid principal amount of each of the Lender’s Loans and LC Exposure Obligations and its participation in Loans and LC Exposure Obligations of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure remaining Obligations as the principal amount of its Loans and LC Exposure Obligations prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Obligations prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro rata; provided that if . If all or any portion of such non-pro-rata excess payment is thereafter recovered or otherwise set asidefrom the Lender which originally received such excess payment, such purchase of participations (or portion thereof) shall be rescinded (without interest)canceled and the purchase price restored to the extent of such recovery. The Credit Parties expressly consent to the foregoing arrangements and agree that any Lender or Lenders holding (or deemed to be holding) a participation in a Note or Letter of Credit may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender or Lenders as fully as if such Lender or Lenders held a Note and was the original obligee thereon or was the issuer of the Letter of Credit, in the amount of such participation. Notwithstanding the foregoing, a Defaulting Lender shall not be entitled to share in any benefit contemplated by this Section 10.2 realized by a non-Defaulting Lender until all the Obligations owed to the non-Defaulting Lenders have been paid in full and the Commitments have been terminated. Notwithstanding the foregoing, the provisions of this Section 8.08 10.2 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor on behalf of any Credit Party pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any a Lender as consideration for the assignment of or sale of a participation in any of its Loans or other Obligations owed participations in L/C Disbursements to itany assignee or participant.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lionsgate Studios Corp.), Credit and Guarantee Agreement (Lionsgate Studios Holding Corp.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s 's lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s 's Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under Letters of Credit may exercise any and all rights of banker's lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of this Section 8.08 shall not be construed 7.01) or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp), Revolving Credit, Term Loan and Guaranty Agreement (Collins & Aikman Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s 's lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s 's Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under of Credit may exercise any and all rights of banker's lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of this Section 8.08 shall not be construed 7.01) or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc), Revolving Credit, Term Loan and Guaranty Agreement (Tower Automotive Inc)
Sharing of Setoffs. Each Lender agrees thatthat if, except to the extent this Agreement other than as expressly provides provided for payments to be allocated to a particular Lenderherein, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed Each Loan Party expressly consents to apply to (a) any payment made by the Borrower or a Guarantor pursuant to foregoing arrangements and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by agrees that any Lender as consideration for the assignment holding (or sale of deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under a Letter of Credit may exercise any and all rights of its Loans banker’s lien, setoff or other Obligations owed counterclaim with respect to itany and all moneys owing by such Loan Party to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.), Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Sharing of Setoffs. Each Lender of the Lenders agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, any Credit Party (including, but not limited to, a secured claim under Section 506 of Title 11 of the Bankruptcy United States Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, ) or otherwise, obtain payment in respect of its Loans or LC Exposure Obligations (which term, for purposes of this Section 10.2 only, shall refer solely to those Obligations referred to in clause (a) of the definition of “Obligations”) as a result of which the unpaid portion of its Loans or LC Exposure Obligations is proportionately less than the unpaid portion of the Loans or LC Exposure Obligations of any of the other Lender Lenders (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender Lenders a participation in the Loans or LC Exposure Obligations of such other LenderLenders, so that the aggregate unpaid principal amount of each of the Lender’s Loans and LC Exposure Obligations and its participation in Loans and LC Exposure Obligations of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure remaining Obligations as the principal amount of its Loans and LC Exposure Obligations prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Obligations prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro rata; provided that if . If all or any portion of such non-pro-rata excess payment is thereafter recovered or otherwise set asidefrom the Lender which originally received such excess payment, such purchase of participations (or portion thereof) shall be rescinded (without interest)canceled and the purchase price restored to the extent of such recovery. The Credit Parties expressly consent to the foregoing arrangements and agree that any Lender or Lenders holding (or deemed to be holding) a participation in a Note or Letter of Credit may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender or Lenders as fully as if such Lender or Lenders held a Note and was the original obligee thereon or was the issuer of the Letter of Credit, in the amount of such participation. Notwithstanding the foregoing, a Defaulting Lender shall not be entitled to share in any benefit contemplated by this Section 10.2 realized by a non-Defaulting Lender until all the Obligations owed to the non-Defaulting Lenders have been paid in full and the Revolving Credit Commitments have been terminated. Notwithstanding the foregoing, the provisions of this Section 8.08 10.2 shall not be construed to apply to (a) any payment made by or on behalf of the Borrower Parent or a Guarantor any Subsidiary thereof pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any a Lender as consideration for the assignment of or sale of a participation in any of its Loans or other Obligations owed participations in L/C Disbursements to itany assignee or participant, including the Parent or any Subsidiary thereof.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Starz Entertainment Corp /Cn/), Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the a Co-Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). Each Co-Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Co-Borrowers to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the a Co-Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Continental Airlines, Inc.), Credit and Guaranty Agreement (United Air Lines Inc)
Sharing of Setoffs. Each Lender of the Lenders agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, any Credit Party (including, but not limited to, a secured claim under Section 506 of Title 11 of the Bankruptcy United States Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, ) or otherwise, obtain payment in respect of its Loans or LC Exposure Obligations (which term, for purposes of this Section 10.2 only, shall refer solely to those Obligations referred to in clause (a) of the definition of “Obligations”) as a result of which the unpaid portion of its Loans or LC Exposure Obligations is proportionately less than the unpaid portion of the Loans or LC Exposure Obligations of any of the other Lender Lenders (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender Lenders a participation in the Loans or LC Exposure Obligations of such other LenderLenders, so that the aggregate unpaid principal amount of each of the Lender’s Loans and LC Exposure Obligations and its participation in Loans and LC Exposure Obligations of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure remaining Obligations as the principal amount of its Loans and LC Exposure Obligations prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Obligations prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro rata; provided that if . If all or any portion of such non-pro-rata excess payment is thereafter recovered or otherwise set asidefrom the Lender which originally received such excess payment, such purchase of participations (or portion thereof) shall be rescinded (without interest)canceled and the purchase price restored to the extent of such recovery. The Credit Parties expressly consent to the foregoing arrangements and agree that any Lender or Lenders holding (or deemed to be holding) a participation in a Note or Letter of Credit may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender or Lenders as fully as if such Lender or Lenders held a Note and was the original obligee thereon or was the issuer of the Letter of Credit, in the amount of such participation. Notwithstanding the foregoing, a Defaulting Lender shall not be entitled to share in any benefit contemplated by this Section 10.2 realized by a non-Defaulting Lender until all the Obligations owed to the non-Defaulting Lenders have been paid in full and the Revolving Credit Commitments have been terminated. Notwithstanding the foregoing, the provisions of this Section 8.08 10.2 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor on behalf of LGEC or any Subsidiary thereof pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any a Lender as consideration for the assignment of or sale of a participation in any of its Loans or other Obligations owed participations in L/C Disbursements to itany assignee or participant, including LGEC or any Subsidiary thereof.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/), Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s 's lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwiseotherwise (but excluding any transactions expressly permitted under the terms of this Agreement), obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s 's Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker's lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular LenderLender or to the Lenders under a particular Facility, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s 's lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s 's Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker's lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular LenderLender or to the Lenders under a particular Facility, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to it.such participation. 106
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed Each Loan Party expressly consents to apply to (a) any payment made by the Borrower or a Guarantor pursuant to foregoing arrangements and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by agrees that any Lender as consideration for the assignment holding (or sale of deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under a Letter of Credit may exercise any and all rights of its Loans banker’s lien, setoff or other Obligations owed counterclaim with respect to itany and all moneys owing by such Loan Party to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Tower Automotive, LLC)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s 's lien, setoff or counterclaim against the Borrower or a Guarantorany Credit Party, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure extensions of credit as a result of which the unpaid portion of its Loans or LC Exposure extensions of credit is proportionately less than the unpaid portion of the Loans or LC Exposure extensions of credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure extensions of credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure 's extensions of credit and its participation in Loans and LC Exposure extensions of credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans extensions of credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure extensions of credit prior to the obtaining of such payment was to the principal amount of all Loans extensions of credit outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed Credit Parties expressly consent to apply to (a) any payment made by the Borrower or a Guarantor pursuant to foregoing arrangements and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by agree that any Lender as consideration for the assignment holding (or sale of deemed to be holding) a participation in extensions of credit may exercise any and all rights of its Loans banker's lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of Section 7.1) or other Obligations owed counterclaim with respect to itany and all moneys owing by any Credit Party to such Lender as fully as if such Lender was the original holder of extensions of credit hereunder and the original obligee thereon, in the amount of such participation.
Appears in 1 contract
Sources: Credit, Guarantee and Security Agreement (Gentek Inc)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular LenderLender or to the Lenders under a particular Revolving Facility, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a GuarantorBorrower, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Revolving Loans or LC Exposure under such Revolving Facility as a result of which the unpaid portion of its Revolving Loans or LC Exposure thereunder is proportionately less than the unpaid portion of the Revolving Loans or LC Exposure thereunder of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Revolving Loans or LC Exposure thereunder of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Revolving Loans and LC Exposure under such Revolving Facility and its participation in Revolving Loans and LC Exposure under such Revolving Facility of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Loans then outstanding and LC Exposure Exposure, in each case under such Revolving Facility, as the principal amount of its Revolving Loans and LC Exposure under such Revolving Facility prior to the obtaining of such payment was to the principal amount of all Revolving Loans outstanding and LC Exposure Exposure, in each case under such Revolving Facility, prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders under such Revolving Facility share such payment pro pro-rata; provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Revolving Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a the Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving Extensions of Credit of any other Lender (other than with respect to any LC Exposure under clause (i) of the definition thereof)
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that that, if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a the Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Sun Country Airlines Holdings, Inc.)
Sharing of Setoffs. Each Lender agrees thatthat if, except to the extent this Agreement other than as expressly provides provided for payments to be allocated to a particular Lenderherein, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it a)it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such b)such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed Each Loan Party expressly consents to apply to (a) any payment made by the Borrower or a Guarantor pursuant to foregoing arrangements and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by agrees that any Lender as consideration for the assignment holding (or sale of deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under a Letter of Credit may exercise any and all rights of its Loans banker’s lien, setoff or other Obligations owed counterclaim with respect to itany and all moneys owing by such Loan Party to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure DDTL Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure DDTL Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure DDTL Extensions of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure DDTL Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans DDTL Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure DDTL Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure DDTL Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 1 contract
Sources: Delayed Draw Term Loan Credit Agreement (Jetblue Airways Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving Extensions of Credit of any other Lender (other than with respect to any LC Exposure under clause (i) of the definition thereof)
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the #4835-7899-9450v13 #4834-7509-9972 amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Jetblue Airways Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular LenderLender or to the Lenders under a particular Revolving Facility, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a GuarantorBorrower, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Revolving Loans or LC Exposure under such Revolving Facility as a result of which the unpaid portion of its Revolving Loans or LC Exposure thereunder is proportionately less than the unpaid portion of the Revolving Loans or LC Exposure thereunder of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Revolving Loans or LC Exposure thereunder of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Revolving Loans and LC Exposure under such Revolving Facility and its participation in Revolving Loans and LC Exposure under such Revolving Facility of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Loans then outstanding and LC Exposure Exposure, in each case under such Revolving Facility, as the principal amount of its Revolving Loans and LC Exposure under such Revolving Facility prior to the obtaining of such payment #90303017v26 was to the principal amount of all Revolving Loans outstanding and LC Exposure Exposure, in each case under such Revolving Facility, prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders under such Revolving Facility share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Revolving Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sharing of Setoffs. Each Lender Bank agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or exercising any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain receive payment of a proportion of the aggregate amount due with respect to any Loan or Reimbursement Obligation owed to it which is greater than the proportion received by any other Bank in respect of its Loans the aggregate amount due with respect to any Loan or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed Reimbursement Obligation owed to have thereupon purchased) from such other Lender a participation Bank, the Bank receiving such proportionately greater payment shall purchase such participations in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of Reimbursement Obligations owed to the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding Banks, and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time made, as may be required so that all such payments with respect to time as the Loans and Reimbursement Obligations owed to the Banks shall be equitable to ensure that shared by the Lenders share such payment Banks pro rata; provided that (i) nothing in this Section shall impair the right of any Bank to exercise any right of setoff or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Borrower other than its indebtedness hereunder and (ii) nothing in any Financing Documents shall require any Bank to share any payments and distributions received by such Bank if such payments and distributions were made in respect of any such non-pro-rata payment is thereafter recovered obligations (including without limitation Other Reimbursement Obligations and Other Mortgage Obligations) not constituting Loans or otherwise set aside, such purchase of participations shall be rescinded (without interest)Reimbursement Obligations. The provisions of this Section 8.08 shall not be construed Borrower agrees, to apply to (a) the fullest extent it may effectively do so under applicable law, that any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale holder of a participation in any a Loan or Reimbursement Obligation, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of its Loans setoff or counterclaim and other Obligations owed rights with respect to itsuch participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Exchange Agreement (Perini Corp)
Sharing of Setoffs. Each Revolving Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Revolving Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Revolving Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving Extensions of Credit of any other Revolving Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Revolving Lender a participation in the Revolving Loans or Revolving Facility LC Exposure of such other Revolving Lender, so that the aggregate unpaid principal amount of each Revolving Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and Revolving Facility LC Exposure of the other Revolving Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Revolving Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Revolving Lender holding (or deemed to be holding) a participation in a Revolving Loan or Revolving Facility LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Revolving Lender as fully as if such Revolving Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Revolving Lender as consideration for the assignment or sale of a participation in any of its Revolving Loans or other Obligations owed to it.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Republic Airways Holdings Inc)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving 1008536250v10 Extensions of Credit of any other Lender (other than with respect to any LC Exposure under clause (i) of the definition thereof) (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any such participation. The provisions of its Loans or other Obligations owed to it.this
Appears in 1 contract
Sources: Second Amended and Restated Credit and Guaranty Agreement (Jetblue Airways Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed Each Loan Party expressly consents to apply to (a) any payment made by the Borrower or a Guarantor pursuant to foregoing arrangements and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by agrees that any Lender as consideration for the assignment holding (or sale of deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under a Letter of Credit may exercise any and all rights of its Loans banker’s lien, setoff or other Obligations owed counterclaim with respect to itany and all moneys owing by such Loan Party to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender Lender
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Ual Corp /De/)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure as a result of which the unpaid portion of its Loans or LC Exposure is proportionately less than the unpaid portion of the Loans or LC Exposure of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Airlines Inc)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s 's lien, setoff or counterclaim against the Borrower or a GuarantorBorrower, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Tranche A or Tranche B Loans or LC Exposure as a result of which the unpaid portion of its Tranche A or Tranche B Loans or LC Exposure is proportionately less than the unpaid portion of the Tranche A or Tranche B Loans or LC Exposure of any other Tranche A or Tranche B Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Tranche A or Tranche B Lender a participation in the Tranche A or Tranche B Loans or LC Exposure of such other Tranche A or Tranche B Lender, so that the aggregate unpaid principal amount of each Lender’s 's Tranche A or Tranche B Loans and LC Exposure and its participation in Tranche A or Tranche B Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Tranche A or Tranche B Loans then outstanding and LC Exposure as the principal amount of its Tranche A or Tranche B Loans and LC Exposure prior to the obtaining of such payment was to the principal amount of all Tranche A or Tranche B Loans outstanding and LC Exposure prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Tranche A or Tranche B Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan may exercise any and all rights of banker's lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of this Section 8.08 shall not be construed 7.01) or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender held a Note and was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Danielson Holding Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving Extensions of Credit of any other Lender (other than with respect to any LC Exposure under clause (i) of the definition thereof)
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The provisions of Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section 8.08 shall not be construed or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any such participation. The provisions of its Loans or other Obligations owed to it.this
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Jetblue Airways Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure Revolving Extensions of Credit as a result of which the unpaid portion of its Loans or LC Exposure Revolving Extensions of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure Revolving Extensions of Credit of any other Lender (other than with respect to any LC Exposure under clause (i) of the definition thereof)
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure Revolving Extensions of Credit and its participation in Loans and LC Exposure of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans Revolving Extensions of Credit then outstanding and LC Exposure as the principal amount of its Loans and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure Revolving Extensions of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; , provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan or LC Exposure acquired pursuant to this Section or any of its banking Affiliates may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation. The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.. 1006536826v43
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the a Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The provisions of this Section 8.08 shall not be construed Each Loan Party expressly consents to apply to (a) any payment made by the Borrower or a Guarantor pursuant to foregoing arrangements and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by agrees that any Lender as consideration for the assignment holding (or sale of deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under a Letter of Credit may exercise any and all rights of its Loans banker’s lien, setoff or other Obligations owed counterclaim with respect to itany and all moneys owing by such Loan Party to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation.
Appears in 1 contract
Sources: First Lien Term Loan and Guaranty Agreement (Tower Automotive, LLC)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under Letters of Credit may exercise any and all rights of banker’s lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of this Section 8.08 shall not be construed 7.01) or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, that if it shall, through the exercise either by it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit as a result of which the unpaid portion of its Loans or LC Exposure unreimbur sed drafts drawn under Letters of Credit is proportionately less than the unpaid portion of the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans or LC Exposure unreimbursed drafts drawn under Letters of Credit of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit and its participation in Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit as the principal amount of its Loans and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment was to the principal amount of all Loans outstanding and LC Exposure unreimbursed drafts drawn under Letters of Credit prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be equitable to ensure that the Lenders share such payment pro pro-rata; provided , provided, that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, aside such purchase of participations shall be rescinded (without interest). The Borrower expressly consents to the foregoing arrangements and agrees that any Lender holding (or deemed to be holding) a participation in a Loan or unreimbursed drafts drawn under of Credit may exercise any and all rights of banker’s lien, setoff (in each case, subject to the same notice requirements as pertain to clause (iv) of the remedial provisions of this Section 8.08 shall not be construed 7.01) or counterclaim with respect to apply to (a) any payment made and all moneys owing by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (b) any payment obtained by any such Lender as consideration for fully as if such Lender was the assignment or sale original obligee thereon, in the amount of a participation in any of its Loans or other Obligations owed to itsuch participation.
Appears in 1 contract