Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 3 contracts
Sources: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower 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)Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements Commitments to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 3 contracts
Sources: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of principal and interest owing with respect to its Loans and accrued interest thereon or other such obligations which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Loans of such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) such participations in the Loans held by the other Bank, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Loans shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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, (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank’s ratable share (iiaccording to the proportion of (x) the amount of such other Bank’s required repayment to (y) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered and (iii) the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (for the avoidance of doubt, as in effect from time to time), including the application of funds arising from the existence of a Defaulting LenderSection 8.06 and Section 9.06(c), or (y) any payment obtained by a Lender Bank as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, Person (other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(hSubsidiaries). The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Loan, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Revolving Credit Facility Agreement (Home Depot, Inc.), Revolving Credit Facility Agreement (Home Depot, Inc.)
Sharing of Setoffs. If any Lender Each Bank agrees that, if it shall, by ------------------ exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations due with respect to any Note held by it which is greater than its pro rata share thereof as the proportion received by any other Bank in respect of the aggregate amount of principal and interest due with respect to any Note held by such other Bank (other than disproportionate payments to any Bank provided hereinfor by this Agreement), then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
(i) if that -------- nothing in this Section shall impair the right of any such participations are purchased Bank to exercise any right of setoff or counterclaim it may have and all or any portion to apply the amount recovered thereby to the payment of indebtedness of the payment giving rise thereto is recoveredBorrower other than its indebtedness under the Notes. If under any applicable bankruptcy, insolvency or other similar law, any Bank receives a secured claim in lieu of a setoff to which this Section applies, such participations shall be rescinded and the purchase price restored Bank shall, to the extent practicable, exercise its rights in respect of such recovery, without interest; and
(ii) secured claim in a manner consistent with the provisions rights of the Banks entitled under this Section 2.18 shall not be construed to apply to (x) share in the benefits of any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any recovery on such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)secured claim. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (Arco Chemical Co), Credit Agreement (Arco Chemical Co)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or resort to collateral security or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Reimbursement Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Reimbursement Notes held by the Banks owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Reimbursement Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Reimbursement Agreement (Gables Residential Trust), Reimbursement Agreement (Gables Realty Limited Partnership)
Sharing of Setoffs. If any 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 exercising it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or otherwisea Guarantor, obtain payment in respect including, but not limited to, a secured claim under Section 506 of any principal of the Bankruptcy Code or other security or interest on any of its arising from, or in
(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 Obligations hereunder resulting in such Lender receiving payment of a proportion of Lender, so that the aggregate amount of each Lender’s Revolving Extensions of Credit and its participation in Loans and accrued interest thereon or LC Exposure of the other such obligations greater than Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Extensions of Credit then outstanding as the amount of its pro rata share thereof as provided herein, then Revolving Extensions of Credit prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the amount of all Revolving Extensions of Credit prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; payment pro-rata, provided that:
(i) that if any such participations are purchased and all non-pro-rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (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 recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements other Obligations owed to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationit.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Spirit Airlines, Inc.), Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Sharing of Setoffs. If any 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 exercising it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against 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 any principal its Term Loans as a result of or interest on any which the unpaid portion of its Term Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion is proportionately less than the unpaid portion of the Term Loans 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 Term Loans of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Term Loans and its participation in Term Loans of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Term Loans then-outstanding as the principal amount of its Term Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the principal amount of all Term Loans outstanding prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; payment pro-rata, provided that:
(i) that if any such participations are purchased and all non-pro-rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (without interest). Each Loan Party 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 Term 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 a Loan Party to such Lender as fully as if such ▇▇▇▇▇▇ was the original obligee thereon, in the amount of such recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) any payment made by the Borrower a Loan Party 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Commitments, participations in Letters of Credit other Obligations owed to it or L/C Disbursements to (c) any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to made by a Purchasing Borrower Loan Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationFee Letter.
Appears in 2 contracts
Sources: Term Loan Credit and Guaranty Agreement (American Airlines, Inc.), Term Loan Credit and Guaranty Agreement (American Airlines, Inc.)
Sharing of Setoffs. If any Term Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans or other Obligations hereunder resulting in such Term Lender receiving payment of a proportion of the aggregate amount of its Term Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Term Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Term Loans and such other obligations of the other Term Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Term Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 2.12 shall not be construed to apply to (x) any payment made by the Borrower 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)Agreement, or (y) any payment obtained by a Term Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Term Loan Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to . Holdings and the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents each consent to the foregoing and agreesagree, to the extent it may effectively do so under applicable lawApplicable Law, that any Term Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Term Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (TreeHouse Foods, Inc.), Credit Agreement (TreeHouse Foods, Inc.)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Note held by the Bank owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from such other Banks shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Banks' ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Banks' required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Mohawk Industries Inc), Credit Agreement (Mohawk Industries Inc)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Banks owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect re spect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (Apple South Inc), Credit Agreement (Apple South Inc)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of principal and interest owing with respect to its Loans and accrued interest thereon or other such obligations which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Loans of such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans held by the other Bank, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Loans shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank’s ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank’s required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Loan, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (Home Depot Inc), Credit Agreement (Home Depot Inc)
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans or other Obligations obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Term Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Term Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans and other amounts owing them; provided that:
, (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
interest and (ii) the provisions of this Section 2.18 paragraph shall not be construed to apply to (x) any payment made by the Borrower 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)Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower Intermediate Holdings or any of its Affiliates subsidiary thereof, unless permitted pursuant to Section 2.12(e), (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (Dynegy Inc.), Credit Agreement (Dynegy Inc.)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Banks owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (Apple South Inc), Credit Agreement (Avado Brands Inc)
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, ------------------ by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Bank owing to such other Bank, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Bank owing to such other Bank shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from such other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 2 contracts
Sources: Credit Agreement (Mohawk Industries Inc), Credit Agreement (Mohawk Industries Inc)
Sharing of Setoffs. (a) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any Class of its Loans or other Obligations hereunder made by it, resulting in such Lender receiving payment of a proportion of the aggregate amount of its such Class of Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Class of Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; Class of Loans, provided that:
: (i) if any such participations or sub-participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or sub-participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
and (ii) the provisions of this Section 2.18 2.12(a) shall not be construed to apply to (xA) any payment made by or on behalf of the Borrower 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)Agreement, or (yB) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates .
(as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(gb) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing participations and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationsub-participations.
Appears in 1 contract
Sources: Credit Agreement (Sunnova Energy International Inc.)
Sharing of Setoffs. If any Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment ,
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in respect of any principal of or interest on any of its the Loans or LC Exposure of such other Obligations hereunder resulting in such Lender receiving payment of a proportion of Lender, so that the aggregate amount of each Lender’s Revolving Extensions of Credit and its participation in Loans and accrued interest thereon or LC Exposure of the other such obligations greater than Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Extensions of Credit then outstanding as the amount of its pro rata share thereof as provided herein, then Revolving Extensions of Credit prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the amount of all Revolving Extensions of Credit prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; payment pro-rata, provided that:
(i) that if any such participations are purchased and all non-pro-rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (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 recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements other Obligations owed to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationit.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
and (ii) the provisions of this Section 2.18 2.14 shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates Subsidiary thereof (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or resort to collateral security or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Term Loan Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Term Loan Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Term Loan Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Term Loan Notes held by the Banks owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Term Loan Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Term Loan Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Gables Residential Trust)
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder participations in Revolving L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Revolving L/C Disbursements and accrued interest thereon or than the proportion received by any other such obligations greater than its pro rata share thereof as provided hereinLender, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such participations in Revolving L/C Disbursements of other obligations of Lenders to the other Lenders, or make such other adjustments as shall be equitable, extent necessary so that the benefit amount of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themparticipations in Revolving L/C Disbursements; provided that:
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
, and (ii) the provisions of this Section 2.18 paragraph shall not be construed to apply to (xA) any payment made by the Borrower EnergySolutions 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 (yB) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or Revolving L/C Disbursements to any assignee or participantParticipant, other than to the Borrower or Parent, EnergySolutions, any of its their respective Subsidiaries or other Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower EnergySolutions consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party EnergySolutions rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party EnergySolutions in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, ------------------ by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Note held by the Bank owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from such other Banks shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Banks' ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Banks' required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 2.14 shall not be construed to apply to (x) any payment made by the a Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the a Borrower or any of its Affiliates Subsidiary thereof (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party such Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Each Lender agrees that if it shall, by exercising any through the exercise of a right of banker's lien, setoff or counterclaim against the Borrowers or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Obligation as a result of which the aggregate unpaid amount of the Obligations owing to it shall be proportionately less than the aggregate unpaid amount of the Obligations owing to any other Lender, it shall simultaneously purchase from such other Lender at face value a participation in the Obligations owing to such other Lender, so that the aggregate unpaid amount of the Obligations and participations in Obligations held by each Lender shall be in the same proportion to the aggregate unpaid amount of all Obligations owing to such Lender prior to such exercise of banker's lien, setoff or counterclaim or otherwiseother event was to the aggregate unpaid amount of all Obligations outstanding prior to such exercise of banker's lien, obtain payment in respect of any principal of setoff or interest on any of its Loans counterclaim or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themevent; provided that:
(i) that if any such participations are purchased purchase or purchases or adjustments shall be made pursuant to this Section 2.13 and all or any portion of the payment giving rise thereto is shall thereafter be recovered, such participations purchase or purchases or adjustments shall be rescinded and the purchase price restored to the extent of such recovery, recovery and the purchase price or prices or adjustments restored without interest; and
(ii) the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the . Each Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower expressly consents to the foregoing arrangements and agrees, to the extent it may effectively do so under applicable law, agrees that any Lender acquiring holding a participation pursuant in an Obligation deemed to the foregoing arrangements have been so purchased may exercise against each Loan Party any and all rights of banker's lien, setoff and or counterclaim with respect to any and all moneys jointly and severally owing by such participation Borrower to such Lender by reason thereof as fully as if such Lender were had made a direct creditor of each Loan Party loan directly to such Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Notes held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Notes held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Banks owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Home Depot Inc)
Sharing of Setoffs. If any Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment 92544055_10
(a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in respect of any principal of or interest on any of its the Loans or LC Exposure of such other Obligations hereunder resulting in such Lender receiving payment of a proportion of Lender, so that the aggregate amount of each Lender’s Revolving Extensions of Credit and its participation in Loans and accrued interest thereon or LC Exposure of the other such obligations greater than Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Extensions of Credit then outstanding as the amount of its pro rata share thereof as provided herein, then Revolving Extensions of Credit prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the amount of all Revolving Extensions of Credit prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; payment pro-rata, provided that:
(i) that if any such participations are purchased and all non-pro-rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (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 recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements other Obligations owed to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationit.
Appears in 1 contract
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of principal and interest owing with respect to its Loans and accrued interest thereon or other such obligations which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Loans of such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans held by the other Bank, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Loans shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Loan, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Home Depot Inc)
Sharing of Setoffs. If any Each Lender agrees that if it shall, by exercising any through the exercise of a right of banker's lien, setoff or counterclaim against the Borrowers or other security or interest arising from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Obligation as a result of which the aggregate unpaid amount of the Obligations owing to it shall be proportionately less than the aggregate unpaid amount of the Obligations owing to any other Lender, it shall simultaneously purchase from such other Lender at face value a participation in the Obligations owing to such other Lender, so that the aggregate unpaid amount of the Obligations and participations in Obligations held by each Lender shall be in the same proportion to the aggregate unpaid amount of all Obligations owing to such Lender prior to such exercise of banker's lien, setoff or counterclaim or otherwiseother event was to the aggregate unpaid amount of all Obligations outstanding prior to such exercise of banker's lien, obtain payment in respect of any principal of setoff or interest on any of its Loans counterclaim or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so event; PROVIDED that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i) if any such participations are purchased purchase or purchases or adjustments shall be made pursuant to this Section 2.13 and all or any portion of the payment giving rise thereto is shall thereafter be recovered, such participations purchase or purchases or adjustments shall be rescinded and the purchase price restored to the extent of such recovery, recovery and the purchase price or prices or adjustments restored without interest; and
(ii) . Each of the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower Borrowers expressly consents to the foregoing arrangements and agrees, to the extent it may effectively do so under applicable law, agrees that any Lender acquiring holding a participation pursuant in an Obligation deemed to the foregoing arrangements have been so purchased may exercise against each Loan Party any and all rights of banker's lien, setoff and or counterclaim with respect to any and all moneys owing by the Borrowers to such participation Lender by reason thereof as fully as if such Lender were had made a direct creditor of each Loan Party loan directly to the Borrowers in the amount of such participation.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (American Architectural Products Corp)
Sharing of Setoffs. If any Each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Notes held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Lender in respect of the aggregate amount of all principal and interest owing with respect to the Notes held by such other Lender, then the Lender receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Lenders owing to such other Lenders, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Lenders owing to such other Lenders shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing thempro rata; provided that:
PROVIDED that (i) nothing in this Section shall impair the right of any Lender 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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Lender is recoveredthereafter recovered from such purchasing Lender, such participations purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Lender's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Lender's required repayment 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 (y) the total amount so recovered from the purchasing Lender) of any payment obtained interest or other amount paid or payable by a the purchasing Lender as consideration for in respect of the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Checkers Drive in Restaurants Inc /De)
Sharing of Setoffs. If any Each Lender shallseverally agrees that if it, by exercising through the exercise of any right of setoff setoff, banker’s lien or counterclaim against Borrower, or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving otherwise receives payment of a proportion the Obligations held by it that is ratably more than any other Lender, through any means, receives in payment of the aggregate amount of its Loans and accrued interest thereon or Obligations held by that Lender (in each case, other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the or on behalf of Borrower 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), (y) the application of cash collateral provided for in Section 2.11 or (yz) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations subparticipations in Letters of Credit or L/C Disbursements Obligations or Swing Line Loans to any assignee or participant, participant (other than an assignment to the Borrower or any of its Affiliates (Subsidiary thereof, as to which the provisions of this paragraph Section shall apply), except for any then, subject to applicable Laws: (a) the Lender exercising the right of setoff, banker’s lien or counterclaim or otherwise receiving such payment shall purchase, and shall be deemed to have simultaneously purchased, from each of the other Lenders a participation in the Obligations held by the other Lenders and shall pay to the other Lenders a purchase price in an amount so that the share of the Obligations held by each Lender after the exercise of the right of setoff, banker’s lien or counterclaim or receipt of payment shall be in the same proportion that existed prior to the exercise of the right of setoff, banker’s lien or counterclaim or receipt of payment; and (b) such other adjustments and purchases of participations shall be made from time to time as shall be equitable to ensure that all of the Lenders share any payment obtained in respect of the Obligations ratably in accordance with each Lender’s share of the Obligations immediately prior to, and without taking into account, the payment; provided that, if all or any portion of a disproportionate payment obtained as a result of the exercise of the right of setoff, banker’s lien, counterclaim or otherwise is thereafter recovered from the purchasing Lender by Borrower or any Person claiming through or succeeding to the rights of Borrower, the purchase of a participation shall be rescinded and the purchase price thereof shall be restored to the extent of the recovery, but without interest. Each Lender that purchases a participation in the Obligations pursuant to an assignment this Section 11.10 shall from and after the purchase have the right to an Affiliated give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender that complies with Section 9.04(g) or to a Purchasing were the original owner of the Obligations purchased. Borrower Party that complies with Section 9.04(h). The Borrower expressly consents to the foregoing arrangements and agrees, to the extent it may effectively do so under applicable law, agrees that any Lender acquiring holding a participation in an Obligation so purchased pursuant to the foregoing arrangements this Section 11.10 may exercise against each Loan Party any and all rights of setoff and setoff, banker’s lien or counterclaim with respect to such the participation as fully as if such the Lender were a direct creditor the original owner of each Loan Party in the amount of such participationObligation purchased.
Appears in 1 contract
Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations the Obligations owing to it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all Obligations of the same type owing to it, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans affected Obligations held by the other Bank(s), and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of such Obligations of the same type owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 any indebtedness of the Borrower other than the Obligations, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in any Obligations, acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Avado Brands Inc)
Sharing of Setoffs. If any Each Lender agrees that if it shall, ------------------ by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Lender in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Lender, then the Lender receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Lenders owing to such other Lenders, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Lenders owing to such other Lenders shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing thempro rata; provided that:
that (i) nothing in this Section shall impair the right of any Lender -------- 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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Lender is recoveredthereafter recovered from such purchasing Lender, such participations purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Lender's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Lender's required repayment 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 (y) the total amount so recovered from the purchasing Lender) of any payment obtained interest or other amount paid or payable by a the purchasing Lender as consideration for in respect of the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or other Obligations obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Revolving Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Revolving Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 2.14 shall not be construed to apply to (x) any payment made by the a Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the a Borrower or any of its Affiliates Subsidiary thereof (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party such Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 10.06) or otherwiseotherwise (including by exercise of its rights under the Collateral Documents), obtain payment in respect of any principal of or interest on any of its Term Loans or other Obligations hereunder resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans and accrued interest thereon or than the proportion received by any other such obligations greater than its pro rata share thereof as provided hereinLender, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Term Loans and such of other obligations of Lenders to the other Lenders, or make such other adjustments as shall be equitable, extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themTerm Loans; provided that:
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
, and (ii) the provisions of this Section 2.18 2.15 shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee Eligible Assignee or participant, other than to the Borrower Holdings or any of its their respective Subsidiaries or any Affiliates thereof (as to which the provisions of this paragraph Section 2.15 shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLegal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each such Loan Party in the amount of such participation. If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.15 applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.15 to share in the benefits of the recovery of such secured claim.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Surgery Partners, Inc.)
Sharing of Setoffs. If any Each Lender shallseverally agrees that if it, by exercising through the exercise of any right of setoff setoff, banker’s lien or counterclaim against Borrower, or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving otherwise receives payment of a proportion the Obligations held by it that is ratably more than any other Lender, through any means, receives in payment of the aggregate amount of its Loans and accrued interest thereon or Obligations held by that Lender (in each case, other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 shall not be construed to apply to (x) any payment made by the or on behalf of Borrower 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), (y) the application of Cash Collateral provided for in Section 2.11 or (yz) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations subparticipations in Letters of Credit or L/C Disbursements Obligations or Swing Line Loans to any assignee or participant, participant (other than an assignment to the Borrower or any of its Affiliates (Subsidiary thereof, as to which the provisions of this paragraph Section shall apply), except for any then, subject to applicable Laws: (a) the Lender exercising the right of setoff, banker’s lien or counterclaim or otherwise receiving such payment shall purchase, and shall be deemed to have simultaneously purchased, from each of the other Lenders a participation in the Obligations held by the other Lenders and shall pay to the other Lenders a purchase price in an amount so that the share of the Obligations held by each Lender after the exercise of the right of setoff, banker’s lien or counterclaim or receipt of payment shall be in the same proportion that existed prior to the exercise of the right of setoff, banker’s lien or counterclaim or receipt of payment; and (b) such other adjustments and purchases of participations shall be made from time to time as shall be equitable to ensure that all of the Lenders share any payment obtained in respect of the Obligations ratably in accordance with each Lender’s share of the Obligations immediately prior to, and without taking into account, the payment; provided that, if all or any portion of a disproportionate payment obtained as a result of the exercise of the right of setoff, banker’s lien, counterclaim or otherwise is thereafter recovered from the purchasing Lender by Borrower or any Person claiming through or succeeding to the rights of Borrower, the purchase of a participation shall be rescinded and the purchase price thereof shall be restored to the extent of the recovery, but without interest. Each Lender that purchases a participation in the Obligations pursuant to an assignment this Section 11.10 shall from and after the purchase have the right to an Affiliated give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender that complies with Section 9.04(g) or to a Purchasing were the original owner of the Obligations purchased. Borrower Party that complies with Section 9.04(h). The Borrower expressly consents to the foregoing arrangements and agrees, to the extent it may effectively do so under applicable law, agrees that any Lender acquiring holding a participation in an Obligation so purchased pursuant to the foregoing arrangements this Section 11.10 may exercise against each Loan Party any and all rights of setoff and setoff, banker’s lien or counterclaim with respect to such the participation as fully as if such the Lender were a direct creditor the original owner of each Loan Party in the amount of such participationObligation purchased.
Appears in 1 contract
Sources: Credit Agreement (Viasat Inc)
Sharing of Setoffs. If any Subject to the application of payments in Section 2.14(b), 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 exercising it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against any Loan Party under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of any principal its Loans as a result of or interest on any which the unpaid portion of its Loans or is proportionately less than the unpaid portion of the Loans of any other Obligations hereunder resulting 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 of such Lender receiving payment of a proportion of other Lender, so that the aggregate amount of each Lender’s Loans and its participation in Loans of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding as the amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the amount of all Loans prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing thempayment pro rata; provided that:
(i) that if any such participations are purchased and all non pro rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (without interest). The Borrowers expressly consent 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 Borrowers to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 Section 8.08 shall not be construed to apply to (xa) any payment made by the Borrower Borrowers or the Guarantors 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements other Obligations owed to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationit.
Appears in 1 contract
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or other Obligations obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Revolving Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and other amounts owing them; provided that:
, (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
interest and (ii) the provisions of this Section 2.18 paragraph shall not be construed to apply to (x) any payment made by the Borrower 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)Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower Intermediate Holdings or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower subsidiary thereof. Each Loan Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender Each Participant agrees that if it shall, by exercising any through the exercise of a right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on in respect of any of its Loans or other Obligations hereunder L/C Disbursement resulting in such Lender Participant receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations participations in L/C Disbursements greater than its pro rata share thereof as provided herein, then the Lender Participant receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Loans and L/C Exposure of such other obligations of the other Lenders, or make such other adjustments as shall be equitableParticipant, so that the benefit aggregate unpaid principal amount of all such payments the L/C Exposure and participations in L/C Exposure held by each Participant shall be shared by in the Lenders ratably in accordance with same proportion to the aggregate unpaid principal amount of L/C Exposure then outstanding as the principal amount of and accrued interest on their respective Loans and its L/C Exposure prior to such exercise of setoff or counterclaim or other amounts owing themevent was to the principal amount of L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided that:
provided, however, that (iA) if any such participations are purchased purchase or purchases or adjustments shall be made pursuant to this Section 2.07 and all or any portion of the payment giving rise thereto is shall thereafter be recovered, such participations purchase or purchases or adjustments shall be rescinded and the purchase price restored to the extent of such recovery, recovery and the purchase price or prices or adjustment restored without interest; and
interest and (iiB) the provisions of this Section 2.18 paragraph shall not be construed to apply to (x) any payment made by the Borrower Company pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting LenderParticipant), or (y) any payment obtained by a Lender Participant as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower Company or any of its Affiliates Subsidiary thereof (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing Company and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant ▇▇▇▇ Corp. expressly consent to the foregoing arrangements and agree that any Participant holding a participation in an L/C Disbursement deemed to have been so purchased may exercise against each Loan Party any and all rights of setoff and or counterclaim or otherwise with respect to any and all moneys owing by the Company and ▇▇▇▇ Corp. to such participation Participant by reason thereof as fully as if such Lender were Participant had made a direct creditor of each Loan Party loan directly to the Company in the amount of such participation.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Vistancia Marketing, LLC)
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Term Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Term Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 2.12 shall not be construed to apply to (x) any payment made by the Borrower 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)Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Term Loan Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawApplicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff set-off or counterclaim or otherwise, obtain payment in respect of any principal of of, or interest on on, any of its Term Loans or other Obligations hereunder resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loans and accrued interest thereon or than the proportion received by any other such obligations greater than its pro rata share thereof as provided hereinLender, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Term Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount Term Loan Applicable Percentage of principal of and accrued interest on their respective Loans and other amounts owing themeach Lender; provided that:
that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
, and (ii) the provisions of this Section 2.18 paragraph shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party the Borrower rights of setoff set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Credit and Security Agreement (Altisource Residential Corp)
Sharing of Setoffs. If any Each Lender agrees that if it shall, by exercising any through the exercise of a right of banker's lien, setoff or counterclaim against the Borrower, 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 under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of any principal its Obligations as a result of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion which the unpaid portion of the aggregate principal amount of its Loans and accrued interest thereon or Obligations is proportionately less than the unpaid portion of the principal amount of the Obligations of any other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall Lender:
(a) notify it shall promptly purchase, at par (and shall be deemed to have thereupon purchased), from such other Lender, a participation in the Administrative Agent Obligations of such factother Lender, so that the aggregate unpaid principal amount of each Lender's Obligations and its participation in Obligations of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Obligations then outstanding as the principal amount of its Obligations prior to the obtaining of such payment was to the principal amount of all Obligations outstanding prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing thempayment pro rata; provided that:
(i) provided, that if any such participations are purchased and all non-pro rata payment is thereafter recovered or any portion otherwise set aside such purchase of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, (without interest; and
(ii) the provisions of and provided further that all references to "Obligations" in this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower mean all Obligations other than pursuant to Sections 2.14, 2.18, 8.6, 9.5 and in accordance with the express terms of this Agreement (including the application of funds 9.6 and any incremental Obligations arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)2.15. The Borrower expressly consents to the foregoing arrangements and agreesagrees that any Lender holding (or deemed to be holding) a participation in the unpaid principal amount of an Obligation may exercise any and all rights of banker's lien, setoff (subject, in each case, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant same notice requirements as pertain to clause (iv) of the foregoing arrangements may exercise against each Loan Party rights remedial provisions of setoff and Section 7.1) or counterclaim with respect to any and all moneys owing by the Borrower to such participation Lender, as fully as if such Lender were held a direct creditor of each Loan Party Note and was the original obligee thereon, in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans Advances or other Obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans Advances and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans Advances and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans Advances and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 2.14 shall not be construed to apply to (x) any payment made by the Borrower 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)Agreement, or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans Advances or Commitments, participations in Letters of Credit or L/C Disbursements Commitments to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower Each Loan Party consents to the foregoing and agrees, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any 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 exercising it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against 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 any principal its Term Loans as a result of or interest on any which the unpaid portion of its Term Loans or other Obligations hereunder resulting in such Lender receiving payment of a proportion is proportionately less than the unpaid portion of the Term Loans 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 Term Loans of such other Lender, so that the aggregate unpaid principal amount of each Lender’s Term Loans and its participation in Term Loans of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Term Loans then-outstanding as the principal amount of its Term Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the principal amount of all Term Loans outstanding prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; payment pro-rata, provided that:
(i) that if any such participations are purchased and all non-pro-rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (without interest). Each Loan Party 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 Term 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 a Loan Party to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) any payment made by the Borrower a Loan Party 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Commitments, participations in Letters of Credit other Obligations owed to it or L/C Disbursements to (c) any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to made by a Purchasing Borrower Loan Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationFee Letter.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (American Airlines, Inc.)
Sharing of Setoffs. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Revolving Loans or other Obligations obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Revolving Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, fact and (b) purchase (for cash at face value) participations in the Revolving Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 2.14 shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates Subsidiary thereof (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. If any 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 exercising 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 any principal its Revolving Extensions of or interest on any Credit as a result of which the unpaid portion of its Revolving Extensions of Credit is proportionately less than the unpaid portion of the Revolving 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 of such other Obligations hereunder resulting in such Lender receiving payment of a proportion of Lender, so that the aggregate amount of each Lender’s Revolving Extensions of Credit and its participation in Loans and accrued interest thereon or of the other such obligations greater than Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Revolving Extensions of Credit then outstanding as the amount of its pro rata share thereof as provided herein, then Revolving Extensions of Credit prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the amount of all Revolving Extensions of Credit prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; payment pro-rata, provided that:
(i) that if any such participations are purchased and all non-pro-rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (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 recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements other Obligations owed to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationit.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Alaska Air Group, Inc.)
Sharing of Setoffs. If any Each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Notes held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Lender in respect of the aggregate amount of all principal and interest owing with respect to the Notes held by such other Lender, then the Lender receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Lenders owing to such other Lenders, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Lenders owing to such other Lenders shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing thempro rata; provided that:
that (i) nothing in this Section shall impair the right of any Lender 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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Lender is recoveredthereafter recovered from such purchasing Lender, such participations purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Lender's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation.other Lender's required repayment to (y) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the
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Sharing of Setoffs. If any Lender Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations hereunder resulting in such Lender receiving receive payment of a proportion of the aggregate amount of its Loans principal and accrued interest thereon or other such obligations owing with respect to the Note held by it which is greater than its pro rata share thereof as provided hereinthe proportion received by any other Bank in respect of the aggregate amount of all principal and interest owing with respect to the Note held by such other Bank, then the Lender Bank receiving such proportionately greater proportion payment shall (a) notify the Administrative Agent of purchase such fact, and (b) purchase (for cash at face value) participations in the Loans Notes held by the other Banks owing to such other Banks, and such other obligations of the other Lenders, or make such other adjustments as shall be equitablemade, as may be required so that the benefit of all such payments of principal and interest with respect to the Notes held by the Banks owing to such other Banks shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themBanks pro rata; provided that:
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 under the Notes, and (ii) if any such participations are purchased and all or any portion of such payment received by the payment giving rise thereto purchasing Bank is recoveredthereafter recovered from such purchasing Bank, such participations purchase from each other Bank shall be rescinded and such other Bank shall repay to the purchasing Bank the purchase price restored of such participation to the extent of such recovery, without interest; and
recovery together with an amount equal to such other Bank's ratable share (ii) according to the provisions proportion of this Section 2.18 shall not be construed to apply to (x) any payment made by the Borrower pursuant amount of such other Bank's required repayment 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 (y) the total amount so recovered from the purchasing Bank) of any payment obtained interest or other amount paid or payable by a Lender as consideration for the assignment purchasing Bank in respect of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h)total amount so recovered. The Borrower consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable law, that any Lender acquiring holder of a participation in a Note, acquired pursuant to the foregoing arrangements arrangements, may exercise against each Loan Party rights of setoff or counterclaim and counterclaim other rights with respect to such participation as fully as if such Lender holder of a participation were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Credit Agreement (Avado Brands Inc)
Sharing of Setoffs. If Subject to the provisions of Section 2.10 with respect to Put Loans, if any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other Obligations obligations hereunder resulting in such Lender Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then then, subject to the requirements of the Intercreditor Agreement, the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing to them; , provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 paragraph shall not be construed to apply to (x) any payment made by the Borrower 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 (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee or participant, other than to the Borrower or any of its Affiliates Subsidiary thereof (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sharing of Setoffs. (a) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its the Loans or other Obligations hereunder made by it, resulting in such Lender receiving payment of a proportion of the aggregate amount of its such Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; , provided that:
(i) if any such participations or sub-participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or sub-participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.18 3.05(a) shall not be construed to apply to (xA) any payment made by or on behalf of the Borrower 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)Agreement, or (yB) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements to any assignee -24- or participant, other than an assignment to the Borrower or any of its Affiliates (as to which the provisions of this paragraph Section 3.05(a) shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g).
(b) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party the Borrower in the amount of such participation.
Appears in 1 contract
Sources: Term Loan Agreement (Sunnova Energy International Inc.)
Sharing of Setoffs. If any Subject to the application of payments in Section 2.14(b), 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 exercising it or any of its banking Affiliates of a right of banker’s lien, setoff or counterclaim against any Loan Party under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of any principal its Loans as a result of or interest on any which the unpaid portion of its Loans or is proportionately less than the unpaid portion of the Loans of any other Obligations hereunder resulting 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 of such Lender receiving payment of a proportion of other Lender, so that the aggregate amount of each Lender’s Loans and its participation in Loans of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding as the amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then prior to the Lender receiving such greater proportion shall (a) notify the Administrative Agent obtaining of such fact, payment was to the amount of all Loans prior to the obtaining of such payment and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments shall be made from time to time as shall be equitable, so equitable to ensure that the benefit of all Lenders share such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing thempayment pro rata; provided that:
(i) that if any such participations are purchased and all non pro rata payment is thereafter recovered or any portion of the payment giving rise thereto is recoveredotherwise set aside, such purchase of participations shall be rescinded and the purchase price restored (without interest). The Borrowers expressly consent 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 Borrowers to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such recovery, without interest; and
(ii) the participation. The provisions of this Section 2.18 8.08 shall not be construed to apply to (xa) any payment made by the Borrower Borrowers or the Guarantors 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 (yb) any payment obtained by a any Lender as consideration for the assignment of or sale of a participation in any of its Loans or Commitments, participations in Letters of Credit or L/C Disbursements other Obligations owed to any assignee or participant, other than to the Borrower or any of its Affiliates (as to which the provisions of this paragraph shall apply, except for any such payment pursuant to an assignment to an Affiliated Lender that complies with Section 9.04(g) or to a Purchasing Borrower Party that complies with Section 9.04(h). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participationit.
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